Public Document
No. 12
®l)p (Unmmnnmpaltl? of iHaHaarbuBPttB
REPORT
Ixxu
, ATTORNEY GENERAL
.nL
Year ending June 30, 1968
Publication of this Document Approved by ALTRhb C. Holland, Stat^ Purchasing Auent.
90()-6-6S»-94978S» Estimated Cost Per Copy: $4,155
STATE mm OF MASSACHUSETTS
APR 22 1970
STATE HOUSE, Bus 1 ON
KASa. Ol'flClALS
3
®i?F (Unmmnutttfalth nf iHaBBarbuaPlts
Boston, December 4, 1968
To the Honorable Senate and House of Representatives:
1 have the honor to transmit herewith the report of the Department of the
Attorney General for the year ending June 30, 1968.
Respectfully submitted,
Elliot L. Richardson,
Attorney General.
J
all)p (!l0mm0ntufaltl; of iHasBarl^ufifttB
DEPARTMENT OF THE ATTORNEY GENERAL
Attorney General
ELLIOT L. RICHARDSON
First Assistant Attorney General
Levin H. Campbell^i
James J. Kelleher^^
Assistant Attornexs General
Christopher J. Armstrong
Richard E. Bachman
Shirley D. Bayle'^
AlLEEN H. BeLFORD
George D. Brown'^
Oscar S. Burrows
Eugene R. Capuano'^
Donald L. Conn
Barry F. Corn^o
Willie J. Davis^
Alan J. Dimond
Samuel W. Gaffer
Paul M. Gollub
Frederic E. Greenman
David C. Hawkins^
Henry S. Healy
Robert L. Hermann
James B. KrasnoqI
Carter Lee
Martin A. Linsky^
Walter H. Mayo IIF^
Robert L. Meade
Howard M. Miller
Paul F. X. Powers
Glendora M. Putnam
Theodore Regnante, Sr.
Charles H. Rogovin
George R. Sprague
David A. Thomas*^
Herbert F. Travers, Jr.
Herbert E. Tucker, Jr.'*^
Elizabeth G. Verville'^
Henry G. Weaver, Jr.
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
Arthur S. DrinkwaterIo
Frank H. Freedmani^
James N. Gabriel
Robert H. Gordon^
Edward D. Hicks
Daniel J. Leonard
Charles W. Patterson '^
Alfred R. Podolski"'
Harold Putnam
Rudolph A. Sacco
Edwin M. Satter III'^
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
John M. Rose Richard A. Savrann^
Assistant Attorneys General Assigned to the
Division of Employment Security
Joseph S. Ayoub Hartley C. Cutter'
James Twohig
Assistant Attorneys General Assigned to Veterans' Division
Richard E. Mastrangelo
Chief Clerk
Russell F. Landrigan
Head Administrative Assistant
Edward J. White
'Appointed July I, 1967
^Appointed July 17, 1967
3ResignedJuly 31, 1967
^Appointed August 14, 1967
•^Appointed August 28, 1967
^'Appointed September 1, 1967
''Resigned September 15, 1967
**Resigned September 30, 1967
^Appointed October 2, 1967
'"Resigned October 31, 1967
"Appointed November 1, 1967
'^Appointed November 15, 1967
'^Appointed December 18, 1967
'^Resigned December 29, 1967
'•'^Resigned January 20, 1968
"'Appointed January 22, 1968
'''Resigned January 26, 1968
'**Appointed January 29, 1968
'^Appointed February 1, 1968
-''Appointed February 5, 1968
2'Resigned June 13, 1968
22 Appointed June 14, 1968
P.D. 12
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period July 1 , 1 967 — June 30, 1 968
Appropriations
0801-01 Attorney General's Salary $ 25,000.00
0801-02 Administration 1,245,687.00
0801-03 Veterans' Legal Assistance 21,000.00
0801-05 Recovery of Certain Unclaimed Court Deposits . . . 25,000.00
0801-10 Certain Legal Services 21,472.00
0802-01 Claims, Damages By State Owned Cars 100,000.00
0802-02 Moral Claims 8,000.00
Total $ 1 ,446, 1 59.00
Lxpendilurcs
0801-01 Attorney General's Salary $ 25,000.00
080 1 -02 Administration 1 ,24 1 , 1 7 1 .43
0801-03 Veterans' Legal Assistance 20,999.52
0801-05 Recovery of Certain Unclaimed Court Deposits ... 917.81
0801-10 Certain Legal Services
0802-01 Claims, Damages By State Owned Cars 100,000.00
0802-02 Moral Claims 8,000.00
Total $ 1 ,396,088.76
Income
080 1 -40-0 1 -40 Fees — Filing Reports — Charitable Organizations $ 1 3,020.00
0801-40-02-40 Fees — Registration— Charitable Organizations .. 2,620.00
080 1 -40-03-40 Fees — Professional Fund Raising Council or
Solicitor 80.00
0801-69-99-40 Miscellaneous 141.60
Total $15,861.60
Financial Statement Verified (under requirements of C. 7, S. 19, G.L.), Octo-
ber 16, 1968.
By JOSEPH T.O'SHEA,
For the Comptroller
Approved for publishing.
M.JOSEPH ST ACEY,
Comptroller
P.D. 12
®l)e (Hommnumfaltl) of ilaBBadiua^tta
Department of the Attorney General
Boston, December 1 , 1 968
To the Honorable Senate and House of Representatives:
Pursuant to the provisions of section 1 I of chapter 1 2 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, 1968, totaling 26,856, are tabulated as follows:
Extradition and interstate rendition 121
Land Court Petitions 1 89
Land Damage cases arising from the taking of land:
Departmentof Public Works 1 ,997
Metropolitan District Commission 1 20
Civil Defense 7
Department of Natural Resources 32
Department of Public Safety 7
Department of Public Utilities 2
Government Center Commission 4
Massachusetts Board of Regional Community Colleges 2
Registry of Motor Vehicles I
Salem Teachers College 1
Southeastern MassachusettsTechnological Institute 14
State Colleges 1
County Commissioners, Worcester 8
University of Massachusetts 6
Miscellaneous cases, including suits for the collection of money due
the Commonwealth 11 ,937
Estates involving application of funds given to public charities 3,179
Settlement cases for support of persons in State institutions 914
Small claims against the Commonwealth 246
Workmen's compensation cases, first reports 6,596
Cases in behalf of Employment Security 670
Cases in behalf of Veterans' Division 802
Introduction
My second Annual Report as Attorney General of the Commonwealth of
Massachusetts, as required by G.L. c. 30, § 32, encompasses the fiscal year
from July 1, 1967 to June 30, 1968.
The multiple responsibilities of the Attorney General as chief law en-
forcement officer in the state, legal counsel for all state agencies and officers
of employees, and the "people's lawyer" have enlarged to keep pace with
the growing problems confronting the citizens of the Commonwealth. In the
second year of my administration, 1 have concentrated my efforts on imple-
P.D. 12 9
meriting existing programs and developing new projects to meet pressing
needs.
My energies have focused on carrying forward a comprehensive program
to combat organized criminal activity. The Organized Crime Section of my
Department, unique in its inception, has attracted national attention in its
attack against the invisible empire of organized crime. Working closely with
federal, state, and local law enforcement agencies, the staff of the Organized
Crime Section has conducted investigations and amassed a great deal of
criminal intelligence which has resulted in indictments against leading un-
derworld figures. Crime undermines the very foundations of society, drain-
ing hundreds of millions of dollars from our economy each year. Only a co-
ordinated effort among law enforcement agencies at every level can hope to
wage an effective war against organized crime.
In an effort to stem the alarming increase in the use of harmful drugs es-
pecially by young people, my Department is assuming a major role as coor-
dinator of the activities of various public and private groups concerned with
drug abuse. Initially, efforts are being concentrated on an inventory and in-
vestigation of the overall attack against drug abuse in the Commonwealth. It
is hoped that the Department will act as a catalyst in stimulating research by
universities and hospitals into new methods of prevention, treatment, and
rehabilitation of drug dependency and addiction.
In the 1 8 months since I became Attorney General, I have endeavored to
provide the citizens of the Commonwealth with the best legal services avail-
able. As the "people's lawyer", it has been my primary concern to insure
that their rights are fully protected. The Citizens Aid Bureau and the Con-
sumer Protection Division, both established in my administration, were cre-
ated specifically to insure that private citizens receive equitable and efficient
treatment of their problems.
Originated in 1 967, the Citizens Aid Bureau acts as a channel through
which the citizen is directed to the state agency best equipped to handle his
particular legal, financial, or personal problem. The marked increase in the
number of requests, inquiries, and complaints submitted to the Bureau has
proven that a definite need for this type of service exists. I intend to enlarge
the Citizens Aid Bureau in order to lessen the gap between the government
and the governed.
To this end, I have also stressed the vital role of the Consumer Protection
Division in extending to the buying public all the protection it is possible
for the Department of the Attorney General to provide. The passage of new
legislation which allows the application of Federal Trade rules and regula-
tions at the state level gives the Consumer Protection Division additional le-
gal tools to safeguard the citizen in the marketplace from fraudulent busi-
ness practices and deceptive advertising techniques.
The success of the programs outlined above, and the effectiveness of the
work of the entire Department is dependent upon the talent and energies of
my staff. Recruited from leading law firms, university faculties, and law
schools throughout the Commonwealth and nation, attorneys in my Depart-
10 P.D. 12
ment received their appointments solely on the strength of background and
experience. Carefully screened by a special committee established during
my administration, they were selected strictly on a non-political basis. It has
been a proud accomplishment of my administration that so many highly-
qualified and dedicated lawyers have joined the Department, many at a fi-
nancial sacrifice.
With great regret, I accepted the resignation of my First Assistant, Levin
H. Campbell, effective June 13, 1968. Mr. Campbell, who became a fellow
of the John F. Kennedy School of Government at Harvard University,
served as First Assistant for more than thirteen months and previously as an
Assistant Attorney General under me and my predecessor. I have appointed
James J. Kelleher, Chief of the Public Charities Division, as Interim First
Assistant. Mr. Kelleher has been in public service for more than 40 years,
having joined the Attorney General's staff in 1927. Wilmot Hastings, pres-
ently associated with a leading Boston law firm, will assume the responsi-
bilities of First Assistant on August 1, 1968.
In January, 1968, I initiated a new system for the submission of quarterly
reports by all the divisions in the Department on a uniform basis. The adop-
tion of this system has permitted the Department to assemble a great deal of
overall statistical information for the first time. The results obtained for the
period beginning January 1 , 1968, and ending June 30 of that year are ap-
pended to this Report as Exhibit "A". While the totals cover only the sec-
ond half of the fiscal year, they do give some idea of the volume of work
handled by the Department.
Boston was chosen as the site for the Annual National Association of At-
torneys General Conference held on June 8-12, 1968. Preparations for the
conference were handled by members of my staff who devoted their efforts
in insuring its success.
In the area of legislation, my staff has engaged in a continuing review of
our present laws, and the drafting of new legislation when a need has been
determined. This year I submitted 38 bills for consideration by the Legisla-
ture, and my Department assisted in the drafting of five other bills. A list of
this proposed legislation appears as Exhibit "B".
The Administrative Division
The Administrative Division is charged with responsibility for most of
the problems reaching the Department in the fields of administrative, consti-
tutional and municipal law, and those arising under the laws relating to tax-
ation and state finance. The scope of the Division's activities is therefore ex-
tensive and varied, reflecting the growing responsibilities of state govern-
ment as a whole. These activities include representing numerous state offi-
cers and agencies in civil proceedings in the Supreme Judicial Court, the
Superior Court, the District Courts, and also the Federal Courts, including
the Supreme Court of the United States.
Favorable decisions were received in twelve of the fourteen cases argued
during the period by members of the Administrative Division before the Su-
P.D. 12 11
preme Judicial Court including: ( 1 ) a decision upholding the Attorney Gen-
eral's certification of the initiative petition to reduce the size of the Massa-
chusetts Legislature; (2) a decision upholding a tariff of the Department of
Public Utilities with respect to furniture movers; (3) a successful appeal
from a Superior Court decision which had declared invalid the "post off
policy of the Alcoholic Beverages Control Commission; (4) a decision that
proceeds received by a beneficiary of a private retirement plan are subject
to the Massachusetts inheritance tax; and (5) the dismissal of a suit chal-
lenging the right of an officer of the Department of Labor and Industries to
serve as an officer in a labor union. Before the United States Supreme
Court, an adverse decision was received in First Agricultural National Bank
of Berkshire County v. State Tax Commission, 392 U.S. 339, in which the
court held that federal legislation prohibited the imposition of the Massa-
chusetts sales and use tax on purchases by national banks.
The Administrative Division also rendered advisory services to a variety
of state agencies and officers. In this capacity the Division reviewed all re-
quests for opinions of the Attorney General received during the period and
drafted virtually all of the 82 forma! opinions actually issued and appear-
ing in this Report. These opinions were researched and drafted with pain-
staking care, since they provide an authoritative interpretation of the law
which is relied upon by public officials and private citizens alike. It will
be obvious from an examination of these opinions that many of them in-
volved legal questions of considerable sensitivity and broad implication.
The formal opinions referred to are exclusive of the 34 opinions issued
by me during the period under the Massachusetts Conflict of Interest Law,
all of which were prepared by members of the Administrative Division.
The opinions issued formally over my signature, however, represent only
a fraction of the advisory services actually furnished by the Administrative
Division. A majority of the requests for formal opinions received during the
period were disposed of informally — in some cases by letters of advice
from members of the Division, in others by conference. In a great many in-
stances state officials took their problems directly to members of the Ad-
ministrative Division without even seeking a formal opinion of the Attorney
General. While it was possible to dispose of most of these problems rela-
tively quickly, some of them required as much legal research and analysis, if
not more, than the average formal opinion.
The Division is also responsible for reviewing all town by-laws and rec-
ommending their approval or disapproval by the Attorney General. 795
such by-laws were processed during the period covered by this Report. Be-
cause of the experience the Division has thereby acquired in the field of
municipal law, it was frequently called upon to advise the town counsel on
legal questions confronting them.
Other functions performed by members of the Administrative Division
include the preparation of legislation to be submitted by me and by other
state officials, the drafting of rules and regulations for various state agen-
cies, the preparation of the descriptive materials required by law for initia-
tive and referendum petitions appearing on the ballot, and service on var-
ious state boards as my designees.
12 P.D. 12
The Citizens' Aid Bureau
The complex nature of governmental structure often confuses the private
citizen faced with a technical, legal, financial or personal problem. In 1 967
I formed the Citizens' Aid Bureau to act as a liaison between the troubled
citizen and the state and local agency which could best assist him. The Bu-
reau was designed to provide the people of Massachusetts with an effective
means by which their particular problems could be solved.
Receiving an average of 65 new complaints, inquiries or requests each
day, the Bureau deals in all types of personal and governmental problems.
All legitimate requests are treated individually and an attempt is made in
each case to assist the citizen with his problem and acquaint him with his
rights. Legal advice and interpretations of the law are not provided, but if
the situation requires professional counseling, it is suggested that a lawyer
be contacted. In the case of indigent persons, the address of the local legal
aid office is provided. Every effort is made to guide the citizen through the
complexities of the governmental process.
The Bureau fills all requests received by the Attorney General's office for
information concerning the Commonwealth. Students and educators regu-
larly contact the Bureau on specific topics and are supplied with all availa-
ble publications to aid them in their research. Out-of-state businesses often
request basic information on Massachusetts laws. Copies of these laws are
provided if available for public distribution.
In order to familiarize state agencies with the role of the Citizens' Aid
Bureau, conferences were held to discuss the nature and scope of its serv-
ices. Representatives of the Department of Public Works, Registry of Motor
Vehicles, the Alcoholic Beverages Control Commission and a number of
other agencies have met with members of the Bureau within the past year.
The existence of the Citizens' Aid Bureau and its proven effectiveness in
solving the problems of private citizens has received a great amount of
public attention. The increased workload has necessitated the hiring of ad-
ditional personnel and the preparation of new reference materials. For ex-
ample, a complete listing of all legal and social services available to citizens
throughout the state has been compiled to facilitate the work of the Citizens'
Aid Bureau.
The Civil Rights And Liberties Division
In the decade since its establishment, the Civil Rights Division has en-
deavored to insure the vigorous enforcement of laws safeguarding civil lib-
erties. The Attorney General's Advisory Committee on Civil Rights and
Civil Liberties continued in the past year to assist and advise the Division
on general and specific issues relating to its official role. This advisory body
consists of distinguished representatives from a variety of fields including
religion, education, communications, and organizations dedicated to the
protection of the rights of minority groups.
The Division acts as chief counsel to the Massachusetts Commission
P.D. 12 13
Against Discrimination, the principal governmental body in the state en-
trusted with the protection of civil rights. The MCAD administers the state
laws prohibiting discrimination on the basis of race, color, religion or na-
tional origin. Members of the Division represent the MCAD in all court
proceedings.
In LaPierre v. Massachusetts Commission Against Discrimination, a case
involving a review of an administrative proceeding by the MCAD under the
Fair Housing Practices laws, the Massachusetts Supreme Judicial Court
concluded that there was substantial evidence to support a finding of dis-
crimination against the respondent, although remanding the case to the
Commission on other grounds. In addition, the Court ruled that the term
"national origin" is broad enough to include national ancestry unless con-
trolled by the context and use of the term in the applicable statute.
Massachusetts Commission Against Discrimination v. Wattendorf was an
extremely significant case for the Commission because of its problems with
repeat violations and large property dealers and owners whose business is
handled by employees and agents. In the Wattendorf case the respondent
was a repeat violator of the Fair Housing laws. In a prior case brought be-
fore the MCAD, the respondent had been ordered to cease and desist deny-
ing consideration to Negroes in renting apartments over which he had con-
trol. An order from the Superior Court issued enforcing the Commission's
order. Subsequently, a Negro filed a complaint with the MCAD alleging
that an employee of the respondent had denied him premises because of his
race. The MCAD brought an action for contempt of the court's order
against the respondent. The trial judge found that the respondent's employ-
ee had discriminated but declined to hold the respondent in contempt as a
matter of law. The MCAD appealed and the Supreme Judicial Court af-
firmed the ruling of the trial judge. The Supreme Judicial Court ruled in ef-
fect that there was no evidence that the respondent himself was involved in
the unlawful act. Hence, there was no conduct on his part comprising the
willful violation of the injunction necessary to constitute contempt. The
Civil Rights Division is submitting legislation for the 1969 Session of the
General Court to remedy the situation and make the principal under a court
order for a fair housing violation liable for the actions of his agent.
Attorneys in the Division also appear regularly in Superior Court pro-
ceedings to prevent discriminatory practices, particularly in the area of
housing.
In addition to handling litigation in the Supreme Judicial Court and the
lower courts, the Division handles a great many inquiries and complaints in
its daily operation. Since the protection of the civil rights of citizens is its
first concern, members of the Division conduct investigations of all com-
plaints. Students' rights, police malpractice, visitation rights of hospital pa-
tients, and obscene literature were among the areas investigated during the
past year. State agencies and local police departments regularly consult at-
torneys in the Division.
Of particular concern is the passage of legislation to insure greater pro-
14 P.D. 12
tection for the civil rights of all citizens, and members of the Division testi-
fied at many legislative hearings. A bill permitting the MCAD to bring "in
rem" proceedings to enjoin the housing of a non-resident (H. 1012) was ac-
tively supported by the Division and subsequently enacted.
Public speaking engagements, the development of guidelines in the areas
of obscenity and police malpractice, and allied education projects were
among the many efforts undertaken by the Division to fulfill its function.
The Harvard Divinity School Fieldwork Project, in which students receive
practical experience in government and other fields, received the encourage-
ment and support of the Civil Rights Division. The supervision of these stu-
dents, who were assigned to various governmental departments, was under-
taken by members of the Division.
The Consumer Protection Division
In the eighteen months of its existence, the Consumer Protection Division
has experienced a rapid growth in its functions, powers, and personnel. Cre-
ated in 1967, the Division was established to protect the citizen as a con-
sumer by enforcing existing state laws against fraud, deceptive advertising
campaigns and price-fixing conspiracies. The passage of the Federal Trade
Commission Model Bill by the Massachusetts legislature greatly increased
the Division's powers by permitting the Attorney General to apply all Fed-
eral Trade Commission rules and regulations to intrastate activities in the
Commonwealth. Since May 10, 1968, when the F.T.C. rules and regula-
tions were promulgated throughout the state, there has been a rapid acceler-
ation in Division activity. The new statute gives the Attorney General cer-
tain subpoena powers in the deceptive practices area and allows speedy in-
junctions against such acts without the necessity of showing "scienter,"; al-
lows for assurances of discontinuance; and, in certain situations, provides
for corporate dissolution.
The broadening of the Division's authority in the past year has greatly in-
creased an already heavy workload. In addition to conducting numerous in-
vestigations and prosecuting cases stemming from these investigations, the
Division engages in many advisory services — answering numerous com-
plaints from citizens; meeting with government officials, business represen-
tatives, and consumers; the publication of a weekly column; and the prepar-
ation of a consumer handbook.
In the area of litigation, anti-trust suits were brought against certain com-
panies in industries closely connected with the public — drug manufactur-
ers, library book publishers, milk companies, copper-piping producers and
rock salt companies:
( I ) An anti-trust suit was brought against five major drug manufactur-
ers (American Cyanimid, Charles Pfizer, Olin Mathieson, Upjohn,
and Bristol Myers) for alleged price-fixing in the sale of a broad-
spectrum antibiotic. Tetracycline. The case is pending in the United
States District Court.
P.D. 12 15
(2) After a thorough investigation of the book publishing industry in
the Commonwealth, suit was initiated against 27 book publishers
charging them with price -fixing with regard to the library editions
of books. Although the suit is still pending, a major wholesaler in-
volved in the litigation has made a settlement with the
commonwealth.
(3) The sum of $162,000 was recovered from three national rock salt
companies (Morton, Diamond Crystal, and International) in settle-
ment of an anti-trust suit brought by the Division. Over 250 cities
and towns in the Commonwealth received their fair share of the
damages.
(4) Anti-trust suits against several copper-piping companies and milk
companies are still pending in the federal courts.
Several criminal convictions were obtained under M.G.L. c. 255 D for
the defendant's failure to disclose the rate of finance charge involved, and to
notify the concerned parties of their right to cancel the contract within 24
hours.
Over 400 separate investigations were conducted in the past year with
tangible results obtained in a significant number. The primary areas of con-
sumer complaints continue to exist in the fields of magazine subscriptions,
home improvements, transmission repairs, automotive transactions, and
various related industries:
( 1 ) An investigation of the transmission repair industry resulted in the
initiation of practices safeguarding the customer — an itemized
parts list, prior customer authorization for all repairs, and trained
personnel.
(2) The Crescent Pool Company was enjoined from engaging in "bait
and switch" practices. Forty-five criminal complaints were ob-
tained, all resulting in convictions, against the Syra Pool Company
of Connecticut for 15 separate violations of M.G.L. c. 255 D and
for bait advertising practices.
(3) The All State Tractor Training Center and other heavyduty equip-
ment training schools were under surveillance in the past year by
members of the Division. The investigations resulted in the estab-
lishment of state supervision by the Department of Education over
the operation of these schools.
(4) The Finance Industry was investigated to determine the extent of
the use of "kickbacks" by the finance companies to automobile
dealers to increase business.
In addition to litigation and investigation, the Division acts as advisor to
the consumer and various government officials and agencies. Numerous in-
quiries and complaints are handled either by mail or telephone. During the
past year, the Division handled approximately 10,000 inquiries or com-
plaints by the general public. A standard consumer complaint form was
adopted in order to facilitate the disposition of the great volume of com-
16 P.D. 12
plaints. While some of these were readily handled, others required extensive
investigation.
The Attorney General is an ex-officio member of the Consumers' Council
and the Chief of the Consumer Protection acts as his representative at all
regular meetings of the Council. Frequently, the Chief gives his opinion or
advises the Council in areas of common interest. Members of the Division
address various consumer groups in order to alert citizens to fraudulent ac-
tivities. Groups of all ages were reached, including senior citizens, college
students, ladies' clubs, and consumers in low income neighborhoods. Meet-
ings with business leaders in various industries were scheduled to discuss
problem areas.
An informed consumer is the best defense against fraudulent practices.
As part of a continuing program of consumer education, I initiated a weekly
news column called "Consumer News" which is distributed to more than
200 newspapers throughout the Commonwealth. The column was designed
to inform the consumer of his legal rights and obligations, and alert him to
existing deceptive practices. The requirements of a legal contract, fraudu-
lent business and advertising methods and descriptions of various "rackets"
were among the subjects discussed in the column. A consumer's handbook,
prepared by the Division, is currently awaiting publication and is expected
to serve as a guide to the consumer in the marketplace.
The Contracts Division
The work of the Contracts Division includes the preparation and trial of
highway and building construction cases before auditors. Justices of the Su-
perior Court, and the Supreme Judicial Court. Members of the Division ap-
pear on motions and depositions incident to these cases, in addition to pros-
ecuting appeals in public contract matters. All public contracts, bonds and
leases are reviewed by the Division for correctness of legal form. Confer-
ences with officials from more than 80 state agencies are frequently sched-
uled to deal with questions relative to state contracts.
Several significant cases were argued during the past year by members of
the Division in the Supreme Judicial Court. In Marinucci Bros. Co., Inc. v.
Commonwealth, for example, the Court overturned an award of
$143,651.77 to the Contractor for damages allegedly resulting from a
breach of contract by the Commonwealth in the relocation of the Mystic
River in Medford as part of the construction of Route 93. This decision re-
sulted in a saving of more than $ 1 80,000 to the Commonwealth, including
the interest awarded by the trial judge.
The Division has been involved in extensive litigation concerning the new
State Office Building, and has utilized the third party impleader procedure
under G. L. c. 23 I , §4B to fully protect the Commonwealth's rights in these
cases. Attorneys in the Division represent the Metropolitan District Com-
mission concerning the work on the Deer Island sewage treatment plant and
has made numerous Court appearances relative to their interests.
In addition to its involvement in litigation, the Division has attended con-
P.D. 12 17
ferences with various department heads and officials, investigated factual
backgrounds in contract disputes, and researched statute and case law.
Members of the Division drafted a contract for consultant services, re-
viewed several new contract forms prior to printing and conferred with the
Purchasing Agent's Division over excise tax forms.
The Division was also responsible for the review and approval of the
form of all documents prepared in connection with note issues and notices
of sale of bonds under financial assistance housing programs for the elderly
and veterans of low income.
The Criminal Division
Reorganized into three sections, the Criminal Division has structured its
operations to meet the increasing demands of its responsibilities. These
three sections — Organized Crime, Trial and Investigation, and Appellate
— reflect the primary concerns of the Criminal Division, which is now the
largest in the Department.
The formation of the Organized Crime Section in May, 1967, made Mas-
sachusetts the first state in the nation to establish a unit specifically designed
to fight organized criminal activities. Even in the early stages of its develop-
ment, the Organized Crime Section has made important contributions to
law enforcement. Significant progress has been achieved in developing, for
the first time, a comprehensive picture of organized criminal activity in the
Commonwealth. A thorough investigation by the Organized Crime Section
into widespread gambling in southeastern Massachusetts resulted in more
than 300 indictments against 24 different individuals. To date, 22 of the 24
persons involved have been convicted, and the other two cases are awaiting
trial. This Section also conducted major investigations to determine the ex-
tent of organized crime's infiltration into the banking industry. As a result
of these investigations, a large scale conspiracy to defraud a major North
Shore bank was uncovered, resulting in grand jury indictments against 2 1
individuals and one corporation. For the first time in the modern history of
the Department, murder indictments against three men were sought and ob-
tained. Presently awaiting trial, the three defendants face charges for the
gangland-style killing of a leading underworld figure.
The number of post-conviction proceedings and appeals to all courts of
the Commonwealth and Federal courts have increased under the jurisdiction
of the Appellate Section. Two cases were heard in the United States Su-
preme Court, one of which was personally argued by the Attorney General.
Perhaps the most significant prosecution ever undertaken by the Criminal
Division was the so-called second Small Loans Trial which began on July
17, 1967, and terminated on June 12, 1968. Preceded by a lengthy investi-
gation, this trial was recorded as the longest in Massachusetts history. It re-
sulted in the conviction of three corporations, a former Supervisor of Small
Loan Agencies and five company public relations officers. The convictions
are now on appeal, together with the appeals of the convictions in the first
Small Loans Trial (which lasted 5 Vi months).
18 P.D. 12
The Division also undertakes to provide all law enforcement personnel
with information regarding recent cases, statutes, and current changes of
law. Many hours of research and revision were spent by members of the Di-
vision in the preparation of a Criminal Law Handbook, the first such publi-
cation to provide a single, authoritative source for police use. The Hand-
book, prepared by the Division for the Governor's Committee on Law En-
forcement and the Administration of Justice, covers the areas of arrest,
"stop-and-frisk", search and seizure, police duties following arrest, prison-
er's rights and treatment of juveniles.
In the past year, several programs were undertaken by the Division in co-
operation with other law enforcement agencies. An example of this cooper-
ative effort is the Department's membership in the Law Enforcement Intel-
ligence Unit, a nationwide organization dedicated to the collection of organ-
ized crime intelligence and the sharing of this information among member
units.
The Eminent Domain Division
All suits against the Commonwealth arising from its exercise of the pow-
er to take private property for public use are the responsibility of the Emi-
nent Domain Division. Ninety percent of the Division's cases are Petitions
for the Assessment of Damages in Superior Court under Chapter 79, the
statute providing legal redress to the property owner who is dissatisfied with
the price offered by the Commonwealth. The remaining ten percent consist
of land suits under Chapter 1 30 (whereby which the Department of Natural
Resources is authorized to take wet lands and swamps for conservation pur-
poses), equity cases, and other cases involving real estate problems.
A great majority of the court actions are jury trials requiring extensive
legal research and preparation. Three-hundred and seventy-three new cases
were filed with the Division in the past year. With the disposal of 240 cases,
the number of cases pending at the end of fiscal 1 967-1 968 was 709.
A case of great importance to the Commonwealth's major roadbuilding
effort affecting the entire Southwest Transportation corridor was Bartlett v.
Commonwealth, in which the Boston and Providence Railroad and the
New Haven and Hartford Railroad contended that the Commonwealth
could not take by eminent domain certain segments of their right of way
needed for this Corridor. Since the Railroads were in bankruptcy, it was
held that their property was under the exclusive control and jurisdiction of
the Federal courts. The Federal District Court ruled against the Common-
wealth but this decision was reversed by the Court of Appeals. Subsequent-
ly, the United States Supreme Court refused to entertain any further
appeal.
Added to a great number of court actions, the Division assumes responsi-
bilities in other allied areas. Drafting and filing new legislation is of particu-
lar concern. The passage of a Division drafted bill to control oil spills was
lauded by the Federal Water Pollution Control Administration as the first
state legislation of its kind and the first such state program to be funded.
P.D. 12 19
Advisory services, both written and oral, are rendered to innumerable
agencies and departments. All eminent domain or real estate problems en-
countered by state agencies are referred to this Division, whose members
also represent the Commonwealth in the Land Court.
Members of the Division have also been concerned with the problem of
air and water pollution, the seaward jurisdiction of the states and a pro-
posed Massachusetts Highway Code. The Attorney General's Conference
on Air and Water Pollution was held in the past year to explore the means
by which an effective program could be launched to combat the increasing
peril of pollution in our air and water supply. Working with the Department
of Public Works, the Division has spearheaded a program to clean-up
the harbor fronts of the Commonwealth, thereby eliminating unsightly and
dangerous piers which are holding back the orderly re -development of the
state's waterfronts.
Plans are being developed for the first conference of Atlantic Seaboard
Attorneys General on the question of the seaward jurisdiction of the states.
A real possibility exists of the development of oil and natural gas resources
under the Continental Shelf. Members of the Eminent Domain Division are
leading the effort to secure a fair share of the lease revenue for the states.
The Employment Security Division
Through the efforts of the Employment Security Division, substantial
sums of money are recovered each year by the Commonwealth. This Divi-
sion prosecutes employers who are delinquent in paying their employment
security taxes and employees who file fraudulent claims for unemployment
benefits.
Attorneys in the Division argued three cases before the Supreme Judicial
Court, all of which involved the question of "availability" of the claimant
seeking unemployment compensation.
Members of the Division also conducted an investigation into claims
against corporations that continue business operations after dissolution by
the Secretary of State's office, and the responsibility of the corporation and
its officers for liabilities incurred during this period.
The Health, Education And Welfare Division
The rapidity with which such problems as swelling public assistance
costs, drug abuse, and air and water pollution have reached near-crisis pro-
portions has been reflected in a parallel growth in the responsibilities of the
Health, Education and Welfare Division.
As the principal attorneys for a host of state agencies, the seven lawyers
in the Division are called upon to perform a wide variety of legal services,
including representation in judicial proceedings, review of regulations, ad-
vice on legal questions and preparation of legislation.
Much of the litigation handled by the Division during the year concerned
sensitive and significant subjects. A review of major cases follows.
20 P.D. 12
In Massachusetts General Hospital v. McCarthy, the Supreme Judicial
Court upheld the position of the Department of the Attorney General by
ruling that the Commissioner of Administration had improperly attempted
to increase the 1 965 rates of reimbursement to hospitals for treating pa-
tients who qualify for public assistance. Although the Court indicated that
such rates may properly be revised during the course of a year, it held that
there must be a public hearing before such revisions could be made. It was
the Commissioner's failure to hold such a hearing that invalidated his at-
tempted revision of the rates. The ruling resulted in the saving of an esti-
mated five million dollars for the Commonwealth.
In litigation arising out of the controversial film Titicut Follies made at
Massachusetts Correctional Institution, Bridgewater, the Superior Court
sustained the Department's position and enjoined showing of the film. The
Court held that the film constituted an invasion of the privacy of the pa-
tients at the institution, and that the defendant producer of the film violated
the contractual agreement pursuant to which he was authorized to make the
film. The particular legal significance of the case is that it is the first to re-
cognize the right of privacy as a legally protected right in Massachusetts.
The defendant has claimed an appeal to the Supreme Judicial Court.
A public health crisis was averted by a preliminary injunction obtained at
the request of the Governor to enforce a declaration of emergency by him
for the purpose of keeping open the Saugus Dump. This dump is used for
trash disposal by twelve communities, innumerable large commercial estab-
lishments and a large Navy base. The Town of Saugus had ordered the
dump closed, whereupon the Governor declared an emergency and ordered
the dump kept open so that an alternative site for trash disposal facilities
could be found. When Town officials ordered the entrance to the dump bar-
ricaded in defiance of the Governor's emergency order, the Health, Educa-
tion and Welfare Division obtained the preliminary injunction. The trial has
been postponed pending legislative efforts to establish a suitable
replacement.
Another interesting and important case involved the withholding of state
aid for support of schools from the City of Lawrence. Due to a teachers'
strike, Lawrence chose to close its schools five days early in June, 1967.
This left the City without the minimum number of days of school required
to receive full state aid. The Department of Education believed that it was
not necessary to close the schools for the balance of the year, and according-
ly withheld a pro rata share of state funds. The City petitioned for judicial
review of the decision of the Department of Education, and the Division
successfully defended the decision. The City has claimed an appeal to the
Supreme Judicial Court.
Great strides were made in the attack on water pollution during the year.
The Division appeared before the Safety and Licensing Board of the Atom-
ic Energy Commission and the Vermont Water Resources Board to prevent
Vermont Yankee Nuclear Power Company from causing thermal pollution
of the Connecticut River, which would have endangered fish, wildlife and
the operation of sewage treatment plants. Our efforts culminated in an
P.D. 12 21
agreement pursuant to which Vermont Yankee agreed to install cooling
towers capable of eliminating any harmful increase in the temperature of
the river as a result of its operation of the nuclear power plant.
In another successful proceeding, the Division obtained an order of the
Superior Court holding that Cumberland Cattle Company was causing pol-
lution of a stream which is used as a source of water for the City of
Attleboro.
In a controversy certain to set an important precedent in the history of
attempts to abate pollution of the Merrimack River, the Division was in-
strumental in compelling the Town of Amesbury to agree to construct a sew-
age treatment plant by 1 970.
Activity in the air pollution field included the institution of judicial pro-
ceedings to enforce Department of Public Health regulations prohibiting
open burning, and to abate pollution by American Biltrite Rubber Co. in
Cambridge. Also, the Division assisted the Department of Public Health in
preparing and issuing a cease and desist order against Boston Edison
Company.
In the welfare sphere, in addition to performing our traditional role of
defending appeals brought against the Department of Public Welfare by ap-
plicants who have been refused public assistance, the Division was called
upon to render advice regarding sit-ins and demonstrations and to defend a
growing number of cases brought in the Federal District Court attacking the
constitutionality of certain state statutes and regulations. For example, one
such case involved an attack on the constitutionality of the Commonwealth's
one-year residency requirement for welfare eligibility.
There were several special projects in which the Division took part dur-
ing the year. Perhaps the most significant of these was the Bridgewater Re-
lease Project. I assigned five special assistant attorneys general to review
files at Bridgewater State Hospital to determine whether or not any patients
were illegally held. It was concluded that approximately three hundred, or
nearly fifty percent, of the patients were indeed unlawfully confined. Ac-
cordingly, legislation to provide special hearings for any patient considered
to be illegally held was drafted by the Division, filed by the Governor, and
enacted as Chapters 6 1 9 and 620 of the Acts of 1 967. During the year hear-
ings were held at Bridgewater for 1 1 3 of the patients in question, all of
whom were determined by the Superior Court to be illegally confined. Of
the 1 13, 2 were discharged, 96 were committed to state hospitals under the
jurisdiction of the Department of Mental Health, 4 were recommitted to
Bridgewater (having been found to be so dangerously mentally ill that strict
security was required), 8 were permitted to remain at Bridgewater at their
own request, and 3 were committed to Veterans Administration hospitals.
The vast number of transfers and discharges benefited not only the patients
involved in the hearings, but also the remaining patients at Bridgewater,
due to the salutary effect upon the staff-patient ratio there. It was a particu-
larly gratifying experience to be involved in providing hearings for these
"forgotten men", some of whom had been held urtlawfuUy for many
decades.
22 P.D. 12
Legislation played a major role in the activities of the Division. In addi-
tion to the Bridgewater hearings statute, the Division participated in the
drafting of Chapter 492 of the Acts of 1968, which established a Rate Set-
ting Commission to set rates payable by governmental units to providers of
health services under medical assistance programs.
Also drafted were comprehensive bills for the treatment and rehabilita-
tion of alcoholics and drug addicts, and a "Good Samaritan" bill to extend
immunity from civil suit for damages to any person who renders aid in an
emergency to anyone who is seriously ill or injured.
Other activities of the Division included participation in conferences
which I called on administrative law and on air and water pollution, the
publication of bulletins relative to such matters as inspections pursuant to
the state sanitary code and films and research projects involving state insti-
tutions, and assistance to the Department of Education and other interested
agencies in developing drug abuse education programs.
The Industrial Accidents Division
The Industrial Accidents Division acts as legal counsel to the Common-
wealth in all workmen's compensation cases involving state employees. Un-
der G.L. C.152, ^69 A, the Attorney General must approve all payments of
compensation benefits, lump sum settlements and disbursements for related
medical and hospital expenses in compensable cases. In contested cases,
members of the Division represent the Commonwealth before the Industrial
Accident Board, and, in any case where the Board's decision is appealed,
before the Superior Court and, on occasion, the Supreme Judicial Court.
In the past fiscal year, the Supreme Judicial Court decided two cases
argued by attorneys from this Division. Each of these cases presented issues
of considerable interest and importance in the field of workmen's compensa-
tion law. In Leveille's Case a petition was filed by an insurance carrier for
reimbursement out of the second-injury fund, known as the General In-
dustrial Accident Fund. The relevant statute (G.L. c.l52, §§37 and 65)
provides for reimbursement where an employee has suffered a physical im-
pairment resulting in the loss by severance or the permanent incapacity of a
hand above the wrist or a foot above the ankle, and then suffers a personal
(industrial) injury which causes further disability by the loss or permanent
incapacity of the opposite bodily member. In this case, the impairment in-
volved only the partial loss of function in each hand. The Industrial Acci-
dent Board found that the petition came within the purview of the applica-
ble statute, and the Superior Court concurred, ordering the State Treasurer
to reimburse the insurer in the sum of $5,345.22. As legal custodian of the
second-injury fund, the Commonwealth appealed the decision to the Su-
preme Judicial Court which reversed the lower court finding. The court
ruled that this was not a case for reimbursement under the statute and that
the second (industrial) injury while substantially disabling, did not render
that hand completely disabled. It agreed with the Commonwealth's argu-
ment that allowance of reimbursement on the facts of this case would estab-
lish a broader standard for hand or foot injuries than is now applied by the
same statute for eye injuries (which is the reduction to twenty seventieths of
normal vision or industrial blindness).
P.D. 12 23
Begins Case involved a claim by a correctional officer employed at the
Bridgewater State Hospital for an alleged injury in 1 962 consisting of an
emotional disturbance which he attributed to his associations with the crim-
inally insane. He claimed that during his employment there he witnessed in-
cidents involving inmates which upset him emotionally. He was treated by a
psychiatrist for an "acute anxiety state". The single member of the Industri-
al Accident Board awarded compensation to the employee amounting to
$10,773 and his decision was affirmed by the Reviewing Board and, on ap-
peal, upheld by the Superior Court. The Commonwealth appealed the deci-
sion to the Supreme Judicial Court, which reversed the decision and or-
dered a decree entered for the Commonwealth. The Court concluded that
the illness suffered by this employee was not a "personal injury" within the
meaning of the act, affirming doctrine elucidated in earlier cases that a "dis-
ease of mind or body which arises in the course of employment, with no-
thing more, is not within the [Workmen's Compensation] act."
During the past fiscal year a total of 6596 accident reports were filed on
state employees' industrial injuries, an increase of 280 over the prior year.
Of the lost-time disability cases, the Division approved 1 128 cases, an in-
crease of 37 over the prior fiscal period.
The Division handled 521 assignments at the Industrial Accident Board,
including hearings and pre-trial conferences, and appearance before the
Courts in appellate matters, an increase of 54 over the prior period. The Di-
vision also participated in an indeterminate number of informal conferences
at the Industrial Accident Board, including those required in the weekly re-
view of new claims pending evaluation and approval by the Attorney Gen-
eral under the statute.
Total payments made by the Commonwealth on state employees' claims
under Chapter 152, including those on accepted cases. Board and court de-
cisions and lump sum settlements approved by the Industrial Accident
Board, for the period July 1 , 1 967 through June 30, 1 968 were as follows:
Industrial Accident Board (General Appropriation)
Incapacity compensation $1,360,439.50
Hospital costs, drugs, etc. 222,998.97
Doctors. Nurses, etc. 213.761.59
$1,797,200.06
Metropolitan District Commission '"'
Incapacity compensation $143,381.21
Medical and hospital costs 45,837.69
$189,218.90
Total Disbursements
Incapacity compensation $1,503,820.71
Hospital and medical costs 482,837.69
$1,986,658.40
' Appropriated to the Division of Industrial Accidents of the Department of Labor and Industries and
administered through its Public Employees Section.
■ These disbursements are from MDC appropriated funds for payment of claims involving MDC em-
ployees.
24 P.D. 12
These disbursements represent a total increase in payments of
$168,046.34 over the prior fiscal year. This is largely attributable to the
statutory increase in compensation rates and rising hospital rates.
In addition to its responsibilities cited above, the Division represents
the Commonwealth in its capacity as custodian of the second-injury funds
under §65 (General Fund) and §65N (Veterans Fund) of Chapter 152.
Members of the Division appear before the Board on petitions filed by
insurers and self-insurers under §§37 and 37A of Chapter 152 for reim-
bursement out of these funds. The Division's members are also required
to hold conferences from time to time with representatives of insurers to
negotiate payments into these funds in those fatal industrial accident cas-
es in which the issue of liability has been compromised.
At the close of the fiscal year, the General Fund (§65) held an unen-
cumbered balance of $ 1 35, 1 97.25. Payments totalled $ 1 1 ,232.08 and re-
ceipts totalled $6,950.
Receipts in the Veterans Fund (§65N) during the fiscal period were
$99,461.67 with payments of $54,523.05, leaving an unencumbered bal-
ance of $269,61 8.68 at the close of the period.
The Public Charities Division
It is the responsibility of the Public Charities Division to review and ex-
amine the annual reports of charitable organizations, investigate complaints
of possible fraud and deception, and enforce compliance with the laws regu-
lating the activities of public charities. The Division represents the Com-
monwealth in legal actions to revive dormant charitable funds, to change
the provisions of philanthropic bequests, and to appoint public administra-
tors to collect and disburse the assets of estates of persons who die leaving
no heirs.
The number of cases involving court proceedings (other than such formal
matters as allowance of accounts and petitions for licenses to sell, without
contest) totaled 225 for the year. Many of these cases, including petitions
for instructions, cy pres applications and compromises of will contests, re-
quired court appearances and hearings, and all involved pleadings.
The total amount collected on account of escheated estates where the de-
ceased die leaving no known heirs totaled $260,180.77. In addition to the
usual type of escheat in the case of an estate handled by a Public Adminis-
trator, escheats also resulted in cases where a deceased left a will but no
known heirs, and the will did not dispose of all the property.
A matter of particular interest handled by the Division was the proceed-
ing in the Dedham Probate Court in which it was determined that the home-
stead property of Katherine Endicott in Dedham could be given to the Com-
monwealth for a Governor's mansion if, as it happened, the town of Ded-
ham did not accept the gift.
P.D. 12 25
In two petitions for the sale of real estate in Boston of the George Robert
White Fund, members of the Division objected to the original prices pro-
posed, $55,000 and $276,000. At public auctions requested by the Divi-
sion, the prices of $70,000 and $335,000 were obtained.
The Susanna Tobey estate in Plymouth involved a fund of $ 1 ,500,000
for a Home for Aged Women in Wareham. Such a use being impracticable
under present conditions, the Probate Court permitted the use of a larger
part of the funds for the erection of an addition to the Tobey Hospital in
Wareham. Somewhat similar arrangements were approved in the Parmenter
estate in Worcester. The funds bequeathed there for an old people's home in
Athol were insufficient and were permitted to be used in connection with
the Athol Memorial Hospital.
In August the Attorney General was requested by an order of the House
of Representatives to investigate the activities of the Morgan Memorial,
Goodwill Industries and International Goodwill Foundation, Inc., especially
in connection with newspaper reports of the proposed construction by the
corporations of a stadium in the town of Stoughton and the possible viola-
tion of the statutory ceiling relative to the amount of property each corpora-
tion could hold.
Upon inquiry it was learned that Morgan Memorial, Inc., and Goodwill
Industries of America, Inc., were not involved in any way in the proposed
stadium project and had taken no action with regard to it. International
Goodwill Foundation, Inc., a new charitable corporation, with which the
other organizations had no legal relationship, was the organization which
had been interested in the stadium. The Foundation, in answer to our in-
quiries, wrote stating it was not qualified under its charter to build the sta-
dium; and, since it would require special legislation to so qualify, its Board
of Trustees decided to have the Foundation withdraw from the stadium
project. The Legislature was informed of the action of the Foundation and
that it was the view of the Division that the provisions of General Laws,
chapter 1 80, section 9, clearly could be invoked to prevent the Foundation
from engaging in a project such as the construction of the proposed stadium
if it involved the Foundation's holding property of a value in excess of
$5,000,000, there being no special legislation authorizing the Foundation to
hold property in excess of that amount. The Legislature was also furnished
with full information as to the activities of the three corporations.
Members of the Division received information from several sources con-
cerning letters sent by organizations located in Massachusetts and other
states offering copies of court records in possible escheat cases. The letters
were sent to persons with the same name as the deceased, the names being
selected indiscriminately from telephone directories. No indication of the
method of selection of the addressees was given in the letters. The Division
brought the matter to the attention of the postal authorities and the attor-
neys general of the states involved. The activities of the persons engaged in
sending these letters were largely abandoned as a result of requirements im-
26 PD. 12
posed that disclosure be made in the letters as to the method of selecting the
addressees.
In addition to its other responsibilities, attorneys in the Division conduct-
ed inquiries into the operations of various organizations soliciting contribu-
tions from the public.
The Torts, Claims, And Collections Division
The Torts, Claims, and Collections Division represents the Common-
wealth, its officers and employees, in tort actions arising in the performance
of their official duties. Acting as legal counsel, it represents the Common-
wealth and the Metropolitan District Commission in claims brought for in-
jury and damage resulting from defects in state highways and MDC roads.
In addition, the Division handles all claims, including court proceedings in-
volving claims, which result from the operation of state-owned motor vehi-
cles by state employees.
After a thorough investigation of all motor tort claims, the Division au-
thorizes direct payment, either to satisfy judgments or in settlement, from a
$100,000 fund appropriated by the General Court. The relevant statute (G.
L. Chapter 12) now provides for maximum payments of $25,000 per per-
son for personal injury, and $ 10,000 for property damage. Prior to January,
1966, the maximum authorized payments under this statute were only
$10,000 for personal injury and only $5,000 for property damage. Yet the
same annual appropriation has been made and no supplemental appropria-
tions have been sought as these increases in liability limits went into effect
— which testifies to the excellent performance of lawyers in the Division.
During the past year there were 230 motor tort claims processed to a con-
clusion by the Division for amounts totaling $95,595.76 with an average
settlement of $401.50 — a comparatively low figure considering the
marked increase of claim costs.
Damages occurring in circumstances which impose a moral, though not a
legal, responsibility upon the Commonwealth are also dealt with the Torts,
Claims, and Collections Division. There have been several special statutes
requiring compensation to be paid for damage from sewerage or water pipe
breaks under Metropolitan District Commission jurisdiction which have
been made subject to approval by the Attorney General. This responsibility
has been assigned from time to time to the Division.
An increasing number of Civil Rights actions brought in the Federal
Court against state officials and judges have been defended by members of
the Division.
Seven road defect cases were disposed of in the past year with an average
cost of $ 1 45.50 per claim.
P.D. 12
27
The Collections Section of the Division represents the Commonwealth in
claims for damage to state property and for recovery of monies due on ac-
count of care of patients in state institutions, as well as amounts owing to
various other state agencies. The following is a summary of cases involved
in this phase of the Division's work:
Dcpartiucnt
Amount
Number of Claims
Mental Health
109,061.46
127
Mental Health Tort case
144.00
1
Public Health
98,697.12
436
Public Health Tort case
100.00
1
Public Works
32,297.22
423
Division of Waterways
3,015.89
4
Metropolitan District Commission
21,136.27
112
Corporations and Taxation
271,473.26
41
Education
1,897.22
51
Public Safety
1,643.12
2
Treasury
12,119.53
13
State Colleges
3,430.76
35
Correction
94.53
2
Public Welfare
25.00
5
Civil Defense Agency
336.08
3
State Auditor
13,113.13
1
Fisheries and Game
355.50
1
Labor and Industries
185.00
1
Office of Secretary
175.00
7
Total
569,300.09
1,266
These figures do not include all payments recovered by the Common-
wealth as there were actions involving the Department of Corporations and
Taxation wherein arrangements were made for direct payments to that De-
partment in substantial amounts.
Attorneys from the Division represent the Attorney General on the Mo-
tor Vehicle Appeal Board in its sessions throughout the state.
The Veterans Division
With the passage of legislation authorizing payment of a bonus to certain
Vietnam veterans, this Division's duties as advisor to veterans and their
families have increased. The Chief of the Division was designated to serve
as a member of the Vietnam Bonus Board and handled a significant number
of inquiries from veterans seeking to ascertain their eligibility. In addition,
the Division Chief acted as counsel to members of the staff of the Treasurer
and Receiver General in interpreting the law and setting up the mechanics
of paying the bonus.
In the past year, the Veterans Division continued to assist veterans and
their families, informing them of their rights and obligations under the law.
The Division also participated in the drafting of formal opinions pertaining
to veterans' affairs. Conferences with various state and federal agencies and
local tax authorities were held to assist veterans in securing the special serv-
ices to which the law entitles them.
28 PD. 12
Conclusion
It is difficult to summarize the innumerable activities of the Department
of the Attorney General without sacrificing many significant details. The
above outline is submitted as a synopsis of the year's work and a brief indi-
cation of the sphere of the Department's concerns.
With the assistance of my exceptional staff, I will strive to consolidate
past achievements and introduce new measures when the need arises in or-
der to insure the highest quality of legal services to the citizens of the Com-
monwealth.
Respectfully submitted,
Elliot L. Richardson,
Attorney General.
EXHIBIT "A'
Statistical Record of Department of the Attorney General,
January 1-June 30, 1968
Litigation: caseload.
1. Number ofcases pending Jan. 1 9,545
2. Number of new cases commenced 2,102
3. Number ofcases disposed of 4,893
4. Number ofcases pending June 30 6,754
Litigation: activity on cases.
1. Number of trials over five days in length 10
2. Number of trials over one but not over five days 102
3. Numberof trials one day or less 542
4. Number of appellate arguments in U.S. Supreme
Court 3
5. Number of appellate arguments in U.S. Courts
of Appeals 1
6. Number of appellate arguments in Supreme Ju-
dicialCourt 33
7. Number of appearances other than for trial or
appellate argument 1,301
8. Number of briefs and legal memoranda
submitted 300
9. Number of extraordinary writs 41
10. Number of oral depositions 22
P.D. 12
29
C. Money collected or saved in litigation.
1. Amount collected by Commonwealth or its
agencies $752,333.13^
2. Amount claimed against Commonwealth or
its agencies $4,921,679,412
3. Amount paid on account of such amounts
claimed $2,949,121,222
4. Amount saved by Commonwealth or its
agencies (i.e., line 2 minus line 3) $1,972,558,192
D. Advisory services.
1 . Number of formal opinions issued other than
under Conflict of Interests Law 25
2. Number of formal opinions issued under
Conflict of Interests Law 16
3. Number of informal opinions and legal
memoranda (other than those involved in
litigation) 2,159
4. Number of administrative hearings attended
(other than involving Commonwealth as a
party litigant) 187
5. Number of rules, regulations and adminis-
trative orders drafted 45
6. Number of contracts, leases and other legal
instruments processed for approval 1,706
7. Number of town by-laws processed for
approval 490
8. Number of fiduciary accounts processed 1,659
9. Number of other other probate matters
processed 726
10. Number of inquiries and complaints from
private individuals and organizations proc-
essed 6,738^
E. Investigations.
1 . Number of investigations pending Jan. 1 . . . . 48
2. Number of new investigations commenced . . . 537
3. Number of investigations closed 507
4. Number of investigations pending June 30 . . . 78
EXHIBIT "B"
1968 Legislation Proposed by the Attorney General
1 . An act extending the special hearing procedures for persons commit-
ted or confined at the Bridgewater State Hospital. (Chapter 44, Acts of
1968) ,
' Exclusive of certain collections by Consumer Protection Division.
"Exclusive of workmen's compensation cases.
•'Exclusive of those processed by Public Charities Division.
30 P.D. 12
2. An act allowing school adjustment counsellors to serve in secondary
schools. (Chapter 66, Acts of 1968)
3. An act increasing the authority of constables to serve process.
(Chapter 74, Acts of 1968)
4. An act extending the Bail Reform Act of 1966 until 1970. (Chapter
127, Acts of 1968)
5. An act permitting the indictment, trial, and conviction of an accesso-
ry in the same manner as a principal. (Chapter 206, Acts of 1968)
6. An act exempting non-resident military personnel from the provi-
sions of law imposing license fees on tratter coach parks. (Chapter 464,
Acts of 1968)
7. An act clarifying the powers of the Division of Waterways regarding
the burning and dumping of rubbish in the harbors of Massachusetts.
(Chapter 626, Acts of 1968)
8. An act to curb the oil pollution of Massachusetts waters. (Chapter
648, Acts of 1968)
9. An act making the crime of conspiracy a felony. (Chapter 72 1 , Acts
of 1968)
10. An act prohibiting electronic surveillance except by law enforce-
ment officials under strict court order. (Chapter 738, Acts of 1968)
11. An act making principals liable for the acts of agents. (Chapter 1 1 ,
Resolves of 1968)
12. An act to curb air pollution caused by automobile exhausts. (Chap-
ter 65, Resolves of 1968)
13. An act further clarifying the Campaign Spending and Disclosure
Law. (Chapter 84, Acts of 1 968)
14. An act making corrective changes in the law relative to entry upon
land taken for highway purposes. (Chapter 93, Resolves of 1968)
15. An act clarifying payment procedures for property taken through
eminent domain proceedings. (Chapter 93, Resolves of 1968)
1 6. An act providing for payment of expenses incurred by the Real Es-
tate Review Board. (Chapter 93, Resolves of 1968)
17. An act extending the authority to excercise the power of eminent
domain to Capital Outlay Programs. (Chapter 93, Resolves of 1968)
18. An act providing protection for the consumer against unfair trade
practices. (S. 1 70)
i 9. An act authorizing the granting of immunity to witnesses under cer-
tain circumstances. (S. 354)
P.D. 12 31
20. An act authorizing the Attorney General and district attorneys to
subpoena books and records of certain corporations and agencies of the
government. (S. 377)
21. A resolve providing for a study relative to developing the water re-
sources within Massachusetts and the advisability of creating water basin
commissions. (S. 442)
22. An act applying competitive bidding procedures to public authori-
ties. (S. 663)
23. An act permitting state income tax returns to be made available to
the Attorney General on court order to assist in criminal cases. (S. 723)
24. An act revising and codifying the laws governing the use of the
highways in the Commonwealth. (S. 928)
25. An act requiring public authorities to maintain open records. (S.
715)
26. An act providing for the establishment of a comprehensive alcohol-
ism treatment and rehabilitation program. (S. 1 169)
27. An act requiring a stenographer at hearings of the State Ballot Law
Commission. (H. 1448)
28. An act providing for the admissibility as evidence of stenographic
transcripts of administrative proceedings. (H. 1478)
29. An act authorizing the posting of notice of a complaint by the Mas-
sachusetts Commission Against Discrimination. (H. 1539)
30. An act establishing a schedule of fines for corporations found guilty
of certain crimes. (H. 1815)
31. An act providing for the summoning of witnesses on behalf of indi-
gent defendants. (H. 1823)
32. An act putting Massachusetts law in conformity with the United
States Supreme Court rulings relating to juvenile offenders. (H. 1823)
33. An act relating to the disposal of property acquired by the Com-
monwealth as a result of search and seizure. (H. 1 829)
34. An act establishing juvenile courts in Worcester and Springfield.
(H. 1835)
35. An act making certain corrective changes in the Massachusetts
Clean Waters Act. (H. 1853)
36. An act establishing the Governor's Committee on Law Enforce-
ment and the Administration of Justice. (H. 1 86 1 )
37. An act relating to the position of the Chairman of the Massachu-
setts Commission Against Discrimination. (H. 1882)
38. An act extending the jurisdiction of the Massachusetts Commission
Against Discrimination to include complaints concerning the public welfare
system. (H. 1921)
32 P.D. 12
Major Legislation Which The Department
Assisted In Drafting
1 . An act strengthening the Commonwealth's Firearm control laws. (C.
737 Acts of 1968)
2. An act establishing special rules for retired justices recalled to active
service for reviewing the commitments of persons confined to Bridgewater
State Hopital. (H. 3794)
3. An act providing for the recodification of the mental health commit-
ment laws within the Commonwealth. (S. 876)
4. An act overruling the 1968 Commonwealth v. Federico Supreme Ju-
dicial Court decision. (Chapter 725, Acts of 1968)
5. An act establishing a commission with authority for setting the rates
to be paid by each governmental unit to providers of health services under
medical assistance programs. (Chapter 497, Acts of 1968)
Number 1. July 6, 1967.
Honorable Quintin J. Crist y. Chairman Alcoholic Beverages Control
Commission
Dear Mr. Cristy: — You have requested my opinion as to whether c.
323 of the Acts of 1967, entitled "AN ACT AUTHORIZING THE SALE
OF ALCOHOLIC BEVERAGES TO BE DRUNK ON THE PREMISES
BETWEEN MIDNIGHT ON SATURDAYS AND ONE O'CLOCK
ANTE MERIDIAN ON SUNDAYS," amending G. L. c. 138, § 33, will
authorize such sales absolutely, or only subject to the permission of local li-
censing authorities.
It is my opinion that the "local option," so-called, applies, so that when
c. 323 becomes effective, sales between midnight Saturdays and 1 :00 A. M.
Sundays will not be authorized except where permitted by the local licens-
ing authorities.
General Laws c. 138, § 33, as it is currently in effect, prohibits sales at
any time on Sundays by holders of tavern licenses under § 1 2, and prohibits
sales by other § 12 licensees during the thirteen-hour period between mid-
night on Saturdays and 1:00 P. M. on Sundays. The prohibition respecting
tavern holders is not affected by c. 323 of the Acts of 1967. But when c.
323 becomes effective, the present prohibition respecting other § 12 licen-
sees will no longer apply during the one-hour period between midnight Sat-
urdays and 1 :00 A. M. Sundays.
Yet although § 33 will no longer prohibit sales by these other licensees
during this one-hour period, it does not follow that they will automatically
be given a privilege to sell during that hour. Section 33 is framed in terms
of a prohibition against certain sales, not in terms of an authorization. The
authority to sell must be found in G. L. c. 138, § 12, which states:
"The hours during which sales of . . . alcoholic beverages may
be made by any licensee . . . shall be fixed by the local licensing
authorities either generally or specially for each licensee . . .
[subject to the statutory privilege of a licensee to sell during the
period between 1 1 :00 A. M. to 11 :00 P. M. on secular days] ."
P.D. 12 33
The effect of c. 323 of the Acts of 1 967 is thus merely to add the hour
between midnight Saturday to 1 :00 A. M. Sunday to the hours during which
local licensing authorities may, in their sound discretion, permit licensees to
sell.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 2. July 6, 1967.
Dr. Richard M. Millard, Chancellor, Board of Higher Education
Dear Doctor Millard: — You have requested my opinion on whether
or not the Board of Higher Education may compensate President Daniel H.
O'Leary of Lowell State College, Dr. Andrew Torrielli, a faculty member of
Lowell State College, and one Henry Goguen, who is not employed by the
Commonwealth, for screening applications for scholarships to be awarded
by the Board, and making recommendations thereon to the Board. Although
your letter does not so state. President O'Leary, by vote of state college
presidents, also serves as a member of the advisory commission to the
Board. See G. L. c. 15, § IB.
Mr. Goguen is not already employed by the Commonwealth, and there is
no problem in compensating him for his services in screening applications.
His employment is, in my opinion, permitted under G. L. c. 15, § ID,
which authorizes the Board ''to administer a scholarship program" and to
"employ . . . consultants ... to study specific matters of concern to the
board."
President O'Leary and Dr. Torrielli may, in my opinion, be compensated
under the foregoing section for the screening services described above,
provided the following four conditions are met:
( 1 ) The services are rendered only occasionally.
(2) The services are performed outside the normal working hours of
President O'Leary and Dr. Torrielli as salaried personnel.
(3) The services are not required to be performed by President
O'Leary and Dr. Torrielli as part of their salaried duties.
(4) No other person is available to perform the services as part of his
regular duties.
Your inquiry requires first a construction of G. L. c. 30, § 21, which
provides:
"A person shall not at the same time receive more than one salary
from the treasury of the commonwealth."
General Laws c. 4, § 7, Twenty-Seventh, provides that in construing stat-
utes, unless a contrary intention clearly appears, " 'Salary' shall mean an-
nual salary." And in Maynard v. Royal Worcester Corset Co., 200 Mass. 1,
it was said at page 4, that "This word [salary] is perhaps more frequently
applied to annual employment than to any other, and its use may import a
factor of permanency." See also Mahonev v. Hildreth & Rogers Co., 332
Mass. 496, 499.
34 P.D. 12
It is the factor of permanency that has been underscored in a series of
opinions by Attorneys General in determining whether compensation from
the Commonwealth is a "salary" within the meaning of G. L. c. 30, § 21.
See Report of the Attorney General for the Year Ending June 30, 1956, p.
42 (and opinions cited therein). As stated in 5 Op. Atty. Gen. 699, 700
(1920).
"It is not necessary to quote authorities in defining what is meant
by the word 'salary' other than to point out that it is limited to
compensation established on an annual or periodical basis and
paid usually in installments, at stated intervals, upon the stipulat-
ed per annum compensation. It differs from the payment of a
wage in that in the usual case wages are established upon the ba-
sis of employment for a shorter term, usually by the day or week,
or on the so-called 'piece work' basis, and are more frequently
subject to deductions for loss of time."
If, therefore, compensation for President O'Leary and Dr. Torrielli is estab-
lished upon the basis of only occasional employment in their screening of
applications, the first of the four conditions enumerated above will be
satisfied.
The second and third conditions are based on G. L. c. 29, i^ 31, which
reads in part as follows: "Salaries payable by the commonwealth shall . . .
be in full for all services rendered to the commonwealth by the persons to
whom they are paid." As interpreted by my predecessors, this section bars
compensation for extra services unless the services are not required in the
performance of the salaried position and are rendered outside the usual
hours of employment therein. 2 Op. Atty. Gen. 309 (1902); 5 Op. Atty.
Gen. (1920) 699, 701. Attorney General's Report for the Year Ending
November 30, 1937, p. 120. Attorney General's Report for the Year End-
ing June 30, 1956, p. 42.
Applying these criteria to the present situation, the duties of presidents
and faculty members of state colleges as defined in the "job descriptions"
compiled by the trustees of state colleges pursuant to G. L. c. 73, i^ 16, do
not include the screening of applications for scholarships to be awarded by
the Board of Higher Education. Although President O'Leary has also been
chosen by a vote of state college presidents to serve on the advisory com-
mission to the Board, I do not believe that this additional responsibility dis-
qualifies him from being compensated for screening scholarship applica-
tions. He receives no additional compensation for serving on the advisory
commission; his only duty as a member thereof is to attend meetings of the
Board and, of course, to give it advice. G. L. c. 15, § IB. In my opinion,
this does not carry with it the duty to screen scholarship applications sub-
mitted to the Board. I assume that the number of applications is considera-
ble and that the screening of them is a time-consuming, painstaking task
which, in the interest of applying uniform criteria, should be performed by
a small group of examiners. Screening thus does not appear to be an inci-
dent of the regular duties of the members of the advisory commission.
The next issue concerns the requirement, derived from G. L. c. 29, § 3 1,
that the extra services must be performed outside usual hours of employ-
ment. Neither the statute establishing the positions of President and faculty
members of Lowell State College (G. L. c. 73, § 16) nor the "job descrip-
tions" which are prepared pursuant to it prescribe the usual hours of em-
P.D. 12 35
ployment for President O'Leary or Dr. Torrielli. Since each serves in a pro-
fessional capacity, a certain degree of flexibility must be presumed. Nev-
ertheless, it is for your Board to establish that the screening of scholarships
by President O'Leary and Dr. Torrielli in no way interferes with the per-
formance of their salaried duties during the hours that they ordinarily de-
vote to them. If there is no interference, then it is my opinion that they sat-
isfy the third condition.
The fourth condition — that no other person is available to perform the
services as part of his regular duties — was first enunciated by Attorney
General J. Weston Allen in 1920, 5 Op. Atty. Gen. 697, 698-699. This
condition, like the first three conditions, presents a question of fact which
must be determined by your Board in the exercise of sound discretion.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 3. July 7, 1967.
Honorable Howard Whitmore, Jr., Commissioner Metropolitan District
Commission
Dear Commissioner Whitmore: — You have requested my opinion as
to the power of the Metropolitan District Commission to lease certain land
under its control in the City of Newton to a private organization. Your of-
fice has advised me that the land is part of a larger tract which was pur-
chased by the Commonwealth, acting through the Metropolitan Park Com-
mission, on June 6, 1916, and, to the extent of any outstanding interests
therein, included in an order of taking by eminent domain adopted by the
Park Commission on January 31, 1917. It is my understanding that both
the purchase and the taking were made under authority of St. 1 894, c. 288
and St. 191 2, c. 699, for the purpose of laying out and constructing a por-
tion of the Hammond Pond Parkway. In 1954 the Metropolitan District
Commission, which had succeeded to the powers of the Metropolitan Park
Commission in 1919, sold a portion of this tract abutting on the Parkway to
Temple Mishkan Teffila, a private religious organization. The Temple now
wishes to lease from the Commission an additional portion of this land, also
abutting on the Parkway, and adjacent to the land previously purchased by
it, for use as a parking area. I assume that the proposed lease would be for a
term of ninety-nine years or less.*
The questions you have raised are in substance as follows:
1. Is the Metropolitan District Commission authorized by G. L. c.
92, § 83 to lease the land in question to the Temple?
2. If such a lease is authorized, is the Commission required:
(a) To restrict the use of the leased property to uses consistent
with the purposes for which the land was acquired?
(b) To obtain the concurrence of the Park Commissioners of the
City of Newton, as provided in G. L. c. 92, § 85?
Under G. L. c. 186, S I , a lease for a term of one hundred years or more is for many purposes treated
as a conveyance of an estate in fee simple. Thus, the conclusions in this opinion do not necessarily
apply to such a lease.
36 P.D. 12
QUESTION 1.
With reference to Question 1, G. L. c. 92, § 83 plainly authorizes the
Metropolitan District Commission to grant leases for various purposes in
certain lands under its control. Section 83 provides:
"The (metropolitan district] commission may, for all purposes
consistent with the purposes specified in sections thirty-three and
thirty-five [parks and boulevards], erect, maintain and care for
buildings, and grant easements, rights of way or other interests in
land, including leases^ in any portion of the lands taken or ac-
quired by it for the purposes of said sections, and may accept and
assent to any deed containing reservations of such easements or
other interests in land, all for such considerations or rentals, and
upon such terms, restrictions, provisions or agreements, as the
commission may deem best." (Emphasis supplied.)
There is nothing in this statute or elsewhere in G. L. c. 92 to suggest that
leases thereunder may be granted only to municipalities or other public
bodies, and not to private individuals and organizations. On the contrary,
the two sections which immediately follow § 83 in G. L. c. 92 imply that
the Legislature was thinking primarily in terms of private lessees. Sections
84 and 85 deal with the Commission's power to dispose of such land by
abandonment and by sale respectively, and both sections refer to the "heirs
and assigns" of the transferee — terms which make no sense if applied to
other than a private individual or entity. These two sections, together with §
83, form a closely related statutory sequence, and the eligibility of private
persons to acquire such land by abandonment and sale under §§84 and 85
suggests that they are likewise eligible to acquire it by lease under § 83.
While the power to grant leases under G. L. c. 92, § 83 is confined to
land acquired "for the purposes oT" G. L. c. 92, §§33 and 35 [parks and
boulevards] , I think that the land in question falls within this category even
though it was acquired under St. 1894, c. 288 and St. 1912, c. 699. Section
1 of the 1 894 statute authorized land acquisition by the Metropolitan Park
Commission to "connect any road, park, way or other public open space
with any part of the cities or towns of the metropolitan parks district under
its jurisdiction, by a suitable roadway or boulevard. . . ." In almost identical
language, G. L. c. 92, § 35 empowers the Metropolitan District Commis-
sion to acquire land to "connect any way, park or other public open space
with any part of the towns of the metropolitan parks district under its juris-
diction by suitable roadways or boulevards. . . ." This similarity between
the two statutes resulted from the incorporation of the 1 894 statute into the
General Laws upon their adoption in 1921.'^ Under G. L. c. 281, § 2, "the
provisions of the General Laws [such as G. L. c. 92, § 35], so far as they
are the same as those of existing statutes [such as St. 1894, c. 288, § 1 ],
shall be construed as a continuation thereof and not as new enactments. . .
." For this reason I conclude that any land acquired under the 1 894 statute
is land acquired "for the purposes of G. L. c. 92, § 35, within the meaning
of G. L. c. 92, § 83. (The fact that powers conferred by St. 1912, c. 699
were also involved in the acquisition of this land does not alter this conclu-
sion, since the 1912 statute merely authorized the particular acquisition and
appropriated money therefor.)
"In the same way, G. 1.. c. 92, ij 83 is traceable to St. 1895, e. 450, S I. which was in effect when this
land was acquired.
P.D. 12 37
Nor does any serious difficulty arise from the fact that the land was orig-
inally acquired by the Metropolitan Park Commission rather than the Met-
ropolitan District Commission. The Park Commission was abolished by St.
1919, c. 350, § 123, and the Metropolitan District Commission created in
its place. The same statute declared that "all the rights, powers, duties and
obligations of [the Park Commission] are hereby transferred to and shall
hereafter be exercised and performed by the metropolitan district commis-
sion established by this act, which shall be the lawful successor of said com-
mission. . . ."
It is therefore my opinion, subject to the qualification stated in my an-
swer to Question 2(a), that the Metropolitan District Commission is author-
ized by G. L. c. 92, § 83 to lease the land in question to Temple Mishkan
Tefila.
QUESTION 2(a).
The answer to Question 2(a) lies in the opening portion of G. L. c. 92, §
83: "The commission may, for all purposes consistent with the purposes
specified in sections thirty-three and thirty-five [parks and boulevards] . . .
grant . . . leases. . . ." The land involved in the contemplated lease, as stated
in my answer to Question 1, was acquired under St. 1894, c. 288, § 1, the
statutory predecessor of G. L. c. 92, § 35, for the purpose of laying out and
constructing the Hammond Pond Parkway. It is therefore my opinion that
the use of the leased land must be restricted to uses consistent with that
purpose.
Whether or not the use of this land by the Temple for a parking area
would be consistent with the purposes for which the land was acquired is
essentially a question of fact. As a practical matter, the answer turns largely
on the degree to which the proposed parking area would be beneficial to
members of the general public using the Parkway. Under this test, the stat-
ute would not, in my opinion, authorize a parking area which was restricted
to use by members and licensees of the Temple. On the other hand, the allo-
cation of an appropriate portion of parkway land to public parking might be
consistent with the purposes for which the land was acquired by the Com-
mission. See Revere Honsini> Authority v. Commonwealth, Mass. Adv. Sh.
(1966) 1047, 1050. Thus, if it were demonstrated that there is a substantial
need for a public parking area in this particular location, and if the leased
premises would be available for parking by the public generally, I think that
the use requirements of G. L. c. 92, § 83 would be satisfied. Such factual
determinations must, of course, be made by the Commission rather than by
this Department.
QUESTION 2(b).
Question 2 (b) involves the relationship between §§83 and 85 of G. L. c.
92. The first paragraph of § 85 provides:
"The [metropolitan district] commission, with the concurrence
of the park commissioners, if any, in the town where the property
is situated, may sell at public or private sale any portion of the
lands or rights in land the title to which has been taken or re-
ceived or acquired and paid for by it for the purposes set forth in
sections thirty-three and thirty-five, and may, with the concur-
rence of such park commissioners, execute a deed thereof, with or
without covenants of title and warranty, all in the name and be-
half of the commonwealth, to the purchaser, his heirs and assigns.
38 P.D. 12
and deposit said deed with the state treasurer, together with a cer-
tificate of the terms of sale and price paid or agreed to be paid at
said sale, and, upon receipt of said price and upon the terms
agreed in said deed, he shall deliver the deed to said purchaser.
The state treasurer may, by the attorney general, sue for and col-
lect the price and enforce the terms of any such sale." (Emphasis
supplied.)
I do not think that the "concurrence" provisions of § 85 are applicable to
leases granted under § 83. Just as § 83 confers power to "erect, maintain
and care for buildings, and grant easements, rights of way or other interests
in land, including leases," § 85 confers power to "sell at public or private
sale . . . lands or rights in land. . . ." Intervening between these two sections
is § 84, which authorizes the Commission to "abandon any easement or
right in land less than the fee. . . ." As previously indicated, all three sec-
tions deal with the power of the Commission to dispose of land held for
park or boulevard purposes under G. L. c. 92, §§33 and 35, and, together,
they form a statutory sequence. The phrase "with the concurrence of the
park commissioners" appears in §§ 84 and 85, but is absent from § 83.
This leads me to believe that for leases under § 83 no such requirement ex-
ists.
This conclusion is supported by the language of the second paragraph of
§85:
"If the commission votes, under this or the preceding section, to
abandon or sell any portion of the lands or rights in land so taken
or acquired by it, and the park commissioners in any town where
said property or right in property is situated refuse or fail to con-
cur with the commission within fourteen days from the giving of
written notice of such vote to said park commissioners, the com-
mission, upon written notice of not less than seven days to said
park commissioners, may appear before the governor and council
and ask their concurrence in such sale or abandonment; and if the
governor and council, after hearing, concur in such sale or aban-
donment, it shall have full force and effect." (Emphasis supplied.)
I think it significant that the references here are confined to §§ 84 and 85
("this or the preceding section") and to the abandonment and sale of land.
Again, the absence of any mention of § 83 or to leases thereunder suggests
that the procedures prescribed in § 85 have no bearing on leases granted
under § 83.
It is therefore my opinion that the concurrence of the Newton Park Com-
missioners, referred to in G. L. c. 92, § 85, is not required for the proposed
lease.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 4. July 13, 1967.
Hon. Quintin J. Cristy, Chairman Alcoholic Beverages Control Commis-
sion
Dfar Mr. Cristy: — You have requested my opinion relative to the li-
censing requirements of G. L. c. 138 (the alcoholic beverages laws) con-
P.D. 12 39
cerning alcoholic beverages imported through points of entry in Massachu-
setts and destined to a recipient outside the Commonwealth. Your question
is cast in the form of an inquiry whether the merchandise may "be cleared
into Massachusetts by the United States Customs Authorities out and from
any Massachusetts Port of Entry for transportation to a destination outside
of this Commonwealth?" From the context of your inquiry, I gather that
your essential question is whether a recipient in a state outside Massachu-
setts must hold an importer's and wholesaler's license under G. L. c. 138, §
18. On the facts submitted, the recipient, whom you designate as the "con-
signee," has no connection with Massachusetts other than arranging for the
alcoholic beverages to be shipped from abroad to a point of entry in Massa-
chusetts in a continuous movement to the out-of-state destination. Trans-
portation of the alcoholic beverages through Massachusetts is done by an
independent carrier, as to whom you have raised no licensing question.
You indicate that the Commission is of the opinion that the consignee
must be licensed under G. L. c. 1 38, § 1 8. You base your conclusion on G.
L. c. 138, § 2, which provides in relevant part:
"No person shall . . . import or export alcoholic beverages or
alcohol, except as authorized by this chapter. . . ." (Emphasis
supplied.)
General Laws c. 138, § 18 provides, in relevant part:
"The commission may issue to any individual who is both a citi-
zen and resident of the commonwealth and to partnerships com-
posed solely of such individuals, and to corporations organized
under the laws of the commonwealth whereof all the directors are
citizens of the United States and a majority thereof residents of
the commonwealth, licenses as wholesalers and importers ( 1 ) to
sell for resale to other licensees under this chapter alcoholic bev-
erages manufactured by any manufacturer licensed under the
provisions of section nineteen and to import alcoholic beverages
into the commonwealth from holders of certificates issued under
section eighteen B^'^ whose licensed premises are located in other
states and foreign countries for sale to such licensees, or (2) to
sell for resale wines and malt beverages so manufactured to such
licensees and to import as aforesaid wines and malt beverages /o/-
sale to such licensees.^' (Emphasis supplied.)
Your question is answered by determining the meaning of the word "im-
port" as used in i^§ 2 and 18 of G. L. c. 138. The activities as set forth
above which a licensee under ^^ 1 8 may engage in are specifically enumerat-
ed. It is a familiar rule of statutory construction that such a specific enumer-
ation precludes other uses. Spence, Bryson Inc. v. The China Products Co.,
308 Mass. 81, 88. In both of the enumerated activities under this section
the term "import" is used in connection with a sale to "licensees under this
chapter," all of whom have a Massachusetts location. On the other hand,
the situation you describe does not contemplate a sale to any person in Mas-
sachusetts but simply involves the transportation of alcoholic beverages
through Massachusetts, destined for use elsewhere. Since this latter activity
does not involve a sale within Massachusetts, I am of the opinion that G. L.
c. 1 38, § 18 is not applicable to the consignee you describe.
^'Section 18B relates to "certificates of compliance" issued with respect to licenses granted outside the
Commonwealth for sales to licensees therein.
40 P.D. 12
It, therefore, remains for me to consider whether or not the term "im-
port" as used in G. L. c. 138, § 2 was intended to apply to the importation
of liquor into Massachusetts destined for use in another state. The same
terms used in different parts of a statute should be given the same meaning
where possible so as to create harmonious legislation covering the same sub-
ject matter. Having already concluded that the term "import" in § 1 8 was
intended to cover only sales to licensees in Massachusetts, I am in like man-
ner of the opinion that the term "import" in G. L. c. 138, § 2 should be
restricted to the same kind of sales.
In your request you have directed my attention to § 2 of the 2 1 st Amend-
ment of the Constitution of the United States, which provides:
"The transportation or importation into any State, Territory, or
possession of the United States for delivery or use therein of in-
toxicating liquors, in violation of the laws thereof, is hereby pro-
hibited. (Emphasis supplied.)
This Amendment does not, however, make a state's jurisdiction para-
mount in all circumstances. The United States Supreme Court has indicated
that a state may not prevent the transportation of liquor through its territory
for use in another state. Hosteller v. Idlewild Bon Voyage Liquor Corp.,
311 U.S. 324.*
However, since the Legislature has used the term "import" in G. L. c.
138 only in connection with sales within the Commonwealth, no constitu-
tional question is raised by the facts you have set forth. Accordingly, I am
of the opinion that a consignee of the type and under the circumstances
which you describe need not hold an importer's and wholesaler's license un-
der G. L. c. 138, § 18.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 5. July 13, 1967.
Dr. Richard M. Millard, Chancellor, The Board of Higher Education
Dear Doctor Millard: — You have requested my opinion as to "wheth-
er the 'representative' members of the Board of Higher Education, i.e., those
elected by the Boards of Trustees of the several segments, . . . are . . . enti-
tled to designate representatives [alternates] to serve at meetings of the
Board in their unavoidable absence." Subject to the limitations set forth be-
low, it is my opinion that such designations may be made.
Section I A of c. 15 of the General Laws establishes a Board of Higher
Education consisting of eleven members, seven of whom are appointed by
the Governor, the other four members, known as the representative mem-
bers being:
"... a member of the board of trustees of the University of Mas-
sachusetts selected by a majority vote of all the members of said
board, a member of the board of trustees of state colleges selected
by a majority vote of all the members of said board, a member of
the board of regional community colleges selected by a majority
'a state may, however, regulate and control the passage of intoxicants through her territory in the in-
terest of preventing their unlawful diversion into the internal commerce of the state. Ibid.
P.D. 12 41
vote of all its members, and a member of the board of trustees of
Lowell Technological Institute or of the board of trustees for the
Southeastern Massachusetts Technological Institute selected al-
ternately by majority vote of all the members of said respective
board, each of said four members to serve for a term of one year.
Authority of a representative member to name an alternate must be
found in G. L. c. 30, § 6A, which provides in pertinent part:
"If any member of a permanent state board or commission . . .
who serves as such by virtue of holding any other office or posi-
tion is unable by reason of absence or disability to perform his
duties as such member, he may, by a writing filed in the office of
such board or commission, designate an officer or employee in his
department who shall, without additional compensation therefor,
perform such duties in case of and during such absence or disabil-
ity, but a person so designated shall have no authority to make
any appointments or removals. Any such designation may in like
manner be revoked at any time." (Emphasis supplied.)
Since the alternate must be an officer or employee in [the member's] de-
partment, a reasonable construction of section 6A imports a requirement
that the member must hold an office or position in the same department.
"Department" is used in the technical sense of a "department of the Com-
monwealth." G. L. c. 30, § I . The Department of Education is, of course,
one of these departments. General Laws c. 15, § 1; and G. L. c. 15, § 19
provides that the boards of trustees of the University of Massachusetts,
Lowell Technological Institute, and Southeastern Massachusetts Technolog-
ical Institute "shall serve in the department [of education]."
Since the "representative" members of the Board of Higher Education
are selected by their fellow members of the respective constituent boards, I
regard the "representative" members as serving on the Board of Higher Ed-
ucation "by virtue of holding" an office or position on the constituent board,
within the meaning of G. L. c. 30, § 6A, quoted above. The primary qualifi-
cation of a "representative" member is that he be a member of one of the
constituent boards. That he must also be selected by a majority of his fellow
members of his constituent board is not such a further warrant of title to
membership on the Board of Higher Education as to prevent his member-
ship on the constituent board from being the primary and sufficient source
of his eligibility. His selection by his fellow members should be considered
to be simply a procedure to implement his original and basic authority to
serve.
The remaining question involves the selection of the designee or
alternate.
Under § 6A, the designee must be an officer or employee in the "depart-
ment" of the member of the Board of Higher Education. It is my opinion
that any officer or employee of the member's board would be eligible to
serve as an alternate since such officer or employee would clearly be "in
[the member's] department" within the meaning of § 6A. Whether or not
any other officers or employees in the Department of Education could prop-
erly be designated to serve does not appear to be presented by your inquiry.
It should be pointed out that the word "absence" as used in § 6A is not.
42 P.D. 12
as you suggest, limited to ''unavoidable" absence. It contemplates inability
to attend meetings for any reason whatsoever. As has been stated by a prior
Attorney General:
"To give effect to [the] legislative intent, the word 'absence' as
used in said section 6A is not to be construed narrowly, but in a
broad general sense so as to comprehend an 'absence' from a
meeting however occasioned." Report of the Attorney General,
December I, 1942 to June 30, 1944, p. 114, 116.
Finally, I should call to your attention the following portion of i^ I A of c.
15:
"If any member [of the Board of Higher Education] is absent
from four regularly scheduled meetings, exclusive of July and Au-
gust, in any calendar year, his office as a member of said board
shall be deemed vacant."
In my opinion, this provision is not affected by G. L. c. 30, § 6A. Thus
even though a "representative" member may appoint an alternate for cer-
tain meetings, he may not himself be absent from more than four (4) regu-
larly scheduled meetings of the Board of Higher Education, exclusive of
July and August, in a calendar year.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 6. July 13, 1967.
Hon. Quintin J. Cristy, Chairman, Alcoholic Beverages Control Commis-
sion
Dear Mr. Christy: — You have requested my opinion concerning the va-
lidity of the action of two of the three members of the Marlborough Licensing
Board in accepting seven applications for a "package goods" store license,
calling hearings thereon, approving one application and denying the other
six, under the following circumstances: The Chairman of the Board, you
state, "refuses to call any meeting to consider these applications"; "the re-
maining two Members did accept applications on their own and processed
them"; "the Chairman refused to attend the hearing on these cases stating it
was an illegal hearing"; and "the other two members, as a result of the hear-
ing, approved one applicant for the available license and denied all the oth-
er applicants." Supplemental information furnished to me by your Commis-
sion indicates that the Chairman regarded any meeting as illegally called
unless he had called it himself.
The question of the validity of the majority's action comes before your
Commission in connection with its responsibility under G. L. c. 138, § 15
to approve or withhold approval of the granting of "package goods" store
licenses by licensing boards. Since the Commission should not approve any
invalid action taken by a licensing board {Fiona v. Alcoholic Beverages
Control Commision, 332 Mass. 53, 56), it is entitled to request my opinion
concerning the law that must govern its determination of the validity of the
Marlborough Board's action.
The law requires that the members of a local licensing board act jointly
P.D. 12 43
and not by the separate action of its individual members. Pettengell v. Alco-
holic Beverages Control Commission, 295 Mass. 473. A board's official ac-
tions "must be determined at a formal and regularly constituted meeting of
the board and must be made a part of its records." Pettengell v. Alcoholic
Beverages Control Commission, supra, at 477. See also G. L. c. 30A, § 1 1 A
and G. L. c. 39, §§ 23A-23C, the "open-meetings" statutes.
The law does not, however, require that all members of the board attend
a meeting as a condition of the validity of actions taken thereat. Numerous
cases have decided that, if a quorum is present, an administrative board
may validly conduct its business. See George v. School District in Mendon,
6 Mete. 497, 511. Cooke v. Scituate, 201 Mass. 107, 109. Codman v.
Crocker, 203 Mass. 146, 154. Specifically, in the case of a licensing board
organized in accordance with the Alcoholic Beverages Control Laws, G. L.
c. 138, §§ 4-9, it is provided in § 6 that "Two members shall be a quorum
for the transaction of business." And G. L. c. 4, § 6, Fifth, relative to the
construction of statutes, provides: "Words purporting to give a joint authori-
ty to, or to direct any act by, three or more public officers or other persons
shall be construed as giving such authority to, or directing such act by, a
majority of such officers or persons." Therefore, the fact that the license in
question was granted at a meeting attended by only two of the three mem-
bers of the board does not in itself cause the grant to be invalid.
On the other hand, it is clear that notice of meetings to all members, ade-
quate and reasonable under the circumstances, is an essential condition of a
formal and regularly constituted meeting. "Ordinarily [a board] cannot act
legally without a meeting of all the members, or a reasonable notice to all,
such as to give every member, if he pays proper attention to his public du-
ties, an opportunity to be present with the others and participate in the busi-
ness before the board." Damon v. Selectmen of Framingham, 195 Mass. 72,
77. Rohie v. Massachusetts Turnpike Authority, 347 Mass. 715, 724-725.
Notice of meetings reasonable under the circumstances is required even
as to a member who has expressed an intention of refusing to participate, in
order that he may have the opportunity to change his mind. In George v.
School District in Mendon, 6 Met. 497, one of the town of Mendon's three
duly elected assessors refused to take his oath of office, and when given no-
tice by the other two assessors of a meeting, declined to attend. Chief Justice
Shaw, in a decision affirming actions taken by the other two assessors at that
meeting, stated at page 511: "If a majority do qualify, by taking the oath,
and the third has not taken the oath, still, if he has notice of their proceed-
ing to execute the office, and declines to take the oath and act with them,
their acts will be good, in the same manner as if he had taken the oath and
declined to act with them. . . ." (Emphasis supplied.)
In deciding whether the Marlborough license in question was granted at a
duly called and conducted meeting of the Marlborough Licensing Board,
the Commission may proceed on the presumption that until shown to be ir-
regular, the acts of public officials will be regarded as having been validly
performed. Robie v. Massachusetts Turnpike Authority, 347 Mass. 715,
725. The burden would then be on the appellants to establish that the hear-
ing before the board was invalid for lack of proper notice to the absent
member.
The fact that the absent member was the chairman of the board does not
put him on a different footing from the other members. It is a fundamental
44 P.D. 12
principle that a public board or committee must be able to function notwith-
standing the opposition, absence, neglect or refusal to participate of a mi-
nority of its members, whoever they may be. See, for example, Roberts
Rules of Order Revised (75th Anniv. Ed.), § 52, at 212: "It is the duty of
the chairman to call the committee together, but, if he is absent, or declines
to call a meeting of the committee, it is the duty of the committee to meet
on the call of any two of its members."
If, as your letter indicates, the chairman "refuses to call any meeting to
consider these applications," and "the chairman refused to attend the hear-
ing on these cases," it accordingly was the duty of the licensing board, pro-
vided proper notice was given to the chairman, to act on the application.
In summary, then, even though the chairman of the Marlborough Licen-
sing Board did not call or attend the meeting in question, you may proceed
on the presumption that the meeting was validly held unless the appellants
establish before your Commission that the chairman, after failing to call the
meeting himself, was not given an opportunity, by reasonable notice from
the other two members to him, to participate therein. If the Commission de-
termines that the meeting was properly held, it should then proceed to con-
sider the approval or disapproval of the Board's action, in the usual man-
ner.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 7. July 14, 1967.
Honorable Cleo F. Jaillet, Commissioner of Corporations and Taxation
Dear Commissioner Jaillet: — You have requested my opinion as to
whether under the provisions of G. L. c. 58, §§ 13-17, relating to reim-
bursement of municipalities for loss of taxes on land used for public institu-
tions, the Commonwealth is required to reimburse for lost taxes the cities
and towns in which property of the following tax-exempt educational insti-
tutions is located: Southeastern Massachusetts Technological Institute
(S.M.T.I.), Lowell Technological Institute of Massachusetts (Lowell Tech),
institutions under the Board of Trustees of State Colleges, and institutions
under the Massachusetts Board of Regional Community Colleges. It is my
opinion that such reimbursement is required.
General Laws c. 58, § 1 3, which is the provision that defines the property
in respect of which the reimbursement is to be made, states:
"In nineteen hundred and fifty-seven, and in every fifth year
thereafter, the commission shall, between January first and June
first, determine as of January first the fair cash value of all land in
every town owned by the commonwealth and used for the purpos-
es of a fish hatchery, game preserve or wild life sanctuary, a state
military camp ground, the Soldiers' Home in Massachusetts, the
Soldiers' Home in Holyoke, a state forest, the University of Mas-
sachusetts, or a public institution under the department of correc-
tion, the department of education, the department of mental
health, the department of public health, the department of public
welfare, or the youth service board, and of all land owned by the
P.D. 12
45
commonwealth and under the care and control of the department
of natural resources or the division of public beaches in the de-
partment of public works and used for recreational or conserva-
tion purposes. . . ." (Emphasis supplied.)
The educational institutions in question are governed by a series of sepa-
rate statutes — S.M.T.I., by G. L. c. 75B; Lowell Tech, by G. L. c. 75A;
institutions under the Massachusetts Board of Trustees of State Colleges, by
G. L. c. 73, §§ 1-18; and institutions under the Massachusetts Board of Re-
gional Community Colleges, by G. L. c. 15, §§ 27-39. Each of the forego-
ing institutions has a large degree of autonomy, in that its operations are de-
termined by a board of trustees. Thus the trustees of S. M.T.I, shall, subject
only to . . . general authority in the board of higher education, have all au-
thority, responsibility, rights, privileges, powers and duties customarily and
traditionally exercised by governing boards of institutions of higher learn-
ing." G. L. c. 75B, § 1 . General Laws c. 15, § 19 provides that the trustees
of S.M.T.L "shall serve in the department [of education] ."
Lowell Tech is "a state institution within the department of education but
not under its control and shall be governed solely by [its] board of trustees
whose authority, responsibility, rights, privileges, powers and duties . . .
shall be the same as those traditionally exercised by governing boards of in-
stitutions of higher learning. In exercising such authority . . . and duties,
said board shall not in the management of the affairs of the institute be sub-
ject to, or superseded in any such authority by, any other state board, bu-
reau, department or commission, except the board of higher education. . . ."
G. L. c. 75 A, § 1 . General Laws c. 1 5, § 19 provides that the trustees "shall
serve in the department [of education) ."
The State Colleges are governed by the Board of Trustees of State Col-
leges, which is given certain broad powers by G. L. c. 73, §§ 1-17 but does
not appear to have the explicit autonomy conferred on the trustees of
S.M.T.L and Lowell Tech by the statutes referred to above.
Finally, the Board of Regional Community Colleges is "established in the
department [of education] , but not subject to its control." G. L. c. 15, § 27.
"Each regional community college . . . shall be governed solely by the board
of regional community colleges. In exercising the authority, responsibility,
powers and duties specifically conferred upon it, the board shall, subject
only to general authority in the board of higher education, have all the au-
thority, responsibility, rights, privileges, powers and duties customarily and
traditionally exercised by governing boards of institutions of higher learn-
ing. In exercising such authority, responsibility, powers and duties said
board shall not in the management of the affairs of said colleges be subject
to, or superseded in any authority by, any other state board, bureau, depart-
ment or commission, except the board of higher education. . . ." G. L. c. 15,
§28.
The Board of Higher Education, to which reference is made in the stat-
utes respecting S.M.T.L, Lowell Tech, and the Board of Regional Com-
munity Colleges, is established by G. L. c. 15, § 1 A, as amended by § 2 of
c. 572 of the Acts of 1965, which provides: "There shall be in the depart-
ment [of education] , but not subject to its control, a board of higher
education."
It is thus clear that the various educational institutions with which we are
46 P.D. 12
here concerned, because of their wide autonomy, are not "under" the De-
partment of Education, in the sense of being subject to its direction or con-
trol. If that is the meaning of "under" as used in G. L. c. 58, § 13, then it
would be my opinion that the various educational institutions would not fall
within the scope of that statute, and reimbursement in respect of lost taxes
on their property would not be required. After careful consideration, how-
ever, I have concluded that "under" was not used in that sense but rather in
the sense of "being associated with" or "being in." My reasons for this con-
clusion require an examination of the origin and history of the statute.
General Laws c. 58, § 13 originated with §§ 1 and 2 of c. 607 of the Acts
of 1910 which provided for reimbursement of cities and towns for loss of
taxes on "land used for the purposes of a public institution." Public institu-
tions were defined as "all institutions subject to the supervision of the state
board of insanity, state board of charity or the board of prison commission-
ers. . . ." As the result of several amendments in the intervening years, the
statute as embodied in the General Laws of 1921 defined the property in
respect of which the reimbursement of taxes was to be made as "land . . .
owned by the commonwealth and used for the purposes of a public institu-
tion under the department of mental diseases, the department of public wel-
fare or the department of correction, a fish hatchery or game preserve, a
state military camp ground, or a state forest." G. L. (1921 ed.) c. 58, § 13.
In the same year, 1921, however, the statute was again amended by describ-
ing the subject property simply as "all land in every town owned by the
commonwealth and used for the purposes of a public institution, a fish
hatchery or game preserve, a state military camp ground, or a state forest."
The term "public institution" was, however, not defined nor was there any
requirement that it be under any department.
With several later amendments not here relevant, the statute remained in
this form until 1956 when, by c. 701 of the Acts of that year, the statute was
rewritten by eliminating the general reference to land "used for the purpos-
es of a public institution" and substituting the reference, now in the statute,
to land "used for the purposes of ... a public institution under the depart-
ment of correction, the department of education, the department of mental
health, or the youth service board. . . ."
I do not regard the 1956 amendment as changing the essential character
of the "public institution" provision of the 1 92 1 amendment. Rather, the
purpose of the 1956 amendment was, in my opinion, simply to clarify the
law so as to specify the general classes of public agencies whose property
would meet the reimbursement test. I find nothing in the amendment or its
purpose or legislative history that indicates that the Legislature intended the
right of a city or town to reimbursement for lost taxes to depend on a fine-
spun analysis of the extent to which any particular institution was subject to
the control of the department in which it was placed.
This conclusion finds support in that portion of the 1956 amendment that
refers first to "a public institution under the department of correction, the
department of education, the department of mental health . . .," and then
goes on to include in the class of property eligible for reimbursement of lost
taxes "all land owned by the commonwealth and under the care and control
of the department of natural resources or the division of public beaches in
the department of public works and used for recreational or conservation
purposes. . . ." (Emphasis supplied.) The use of the phrase "care and con-
P.D. 12 47
trol" is here used with reference to the land itself whereas the phrase ''un-
der," when used alone, pertains only to the relationship of the particular in-
stitution to the department with which it is connected. That relationship,
however, as I have already stated, I do not regard as requiring the presence
of an element of control by the department involved.*
In reaching the conclusion, I have not overlooked the amendment made
by the Legislature in 1960 by c. 593, § 1 of the Acts of that year, whereby
the University of Massachusetts was specifically included as an institution in
respect of whose real estate the Commonwealth was to make reimbursement
for lost taxes. I regard this amendment as only a clarification intended to
dispel doubts that the statute apparently presented with respect to the Uni-
versity. Further, nothing in this opinion should be regarded as requiring
reimbursement contrary to the provisions of G. L. c. 58, § 15 A, relative to
land exempt from local taxation at the time of its acquisition by the Com-
monwealth. In short, I am of the opinion that the communities where the
educational institutions in question are located are, subject to the qualifica-
tion stated in the preceding sentence, entitled to reimbursement for lost real
estate taxes in respect of their property.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 8. July 19, 1967.
Honorable John A. Gavin, Commissioner of Correction
Dear Commissioner Gavin: — In a recent letter you have asked my
opinion "as to whether the Commissioner of Correction has the authority un-
der [G. L.] Chapter 127, Section 97 to transfer a prisoner from another
Massachusetts Correctional Institution to the State Hospital section of the
Massachusetts Correctional Institution, Bridgewater."
Chapter 127, § 97 provides in pertinent part:
"The commissioner [of correction] may transfer any prisoner
from one correctional institution of the commonwealth to another
. . .; provided that no person sentenced to the state prison . . .
shall be so removed to any other institution except the Massachu-
setts Correctional Institution, Walpole, the Massachusetts Correc-
tional Institution, Concord, or the Massachusetts Correctional In-
stitution, Bridgewater, except with the approval of the governor
and council."
In view of a provision in G. L. c. 125, i^ 18 that "The Bridgewater state
hospital shall be part of the Massachusetts Correctional Institution, Bridge-
water [,]" the foregoing language might, by itself, seem to permit you to
transfer prisoners to the Hospital there as well. Yet, after careful considera-
tion, I am of the opinion that your authority does not reach that far. I be-
lieve that transfers to the Hospital are governed by G. L. c. I 23, §§ 102 and
103, and require the issuance of a warrant by the Superior Court. General
Laws c. 123, §§ 102 and 103 provide:
"House Bill No. 1704 of 1956, which originated the 1956 amendments, also used the phrase "under the
care and control of in relation to the enumerated departments. This was changed to "under."
48 P.D. 12
§ 102. "The department [of mental health] shall designate two
persons, experts in insanity, to examine prisoners in the correc-
tional institutions of the commonwealth, alleged to be insane. If
any such prisoner appears to be insane or in such mental condi-
tion that his commitment to an institution for the insane is neces-
sary for his proper care or observation pending the determination
of his insanity, the warden or superintendent shall notify one or
both of said experts, who shall, with the physician of such penal
institution, examine the prisoner and report the result of their in-
vestigation to the superior court for the county where such penal
institution is situated."
§ 103. "The superior court upon a report under the preceding
section, if it considers the prisoner to be insane or in such mental
condition that his commitment to an institution for the insane is
necessary for his proper care or observation pending the determi-
nation of his insanity, and his removal expedient, shall issue a
warrant, directed to the warden or superintendent, authorizing
him to cause the prisoner, if a male, to be removed to the Bridge-
water state hospital, and, if a female, to be removed to one of the
state hospitals for the insane, subject to the provisions of section
one hundred and five."
Past practice seems to have relied on these provisions as the basis of the
transfer of prisoners to the Hospital, despite the existence of provisions cor-
responding to the present G. L. c. 125, § 18 (relative to the Hospital being
a part of the Correctional Institution) and the present G. L. c. 127, § 97
(relative to the Commissioner's authority over prisoner transfers). Com-
monwealth V. Sacco, 255 Mass. 369, 408. This practice reflects a recogni-
tion of the well-settled rule that a statute directed specifically to a particular
subject (in this case, the transfer of persons to mental hospitals, of which the
Hospital at Bridgewater is one) will prevail over a general statute not fo-
cused thereon; and it reflects also a construction that makes the statutes con-
cerning your authority, on the one hand, and the jurisdiction of the Superior
Court, on the other, parts of a harmonious and consistent body of legisla-
tion.
My opinion that the Legislature intended the Superior Court warrant
procedure to control the transfer of prisoners to the Hospital finds confir-
mation in legislation enacted in 1955 which made numerous changes in the
correctional system of the Commonwealth but continued in force both the
Commissioner's authority to transfer prisoners under G. L. c. I 27, § 97 and
the Superior Court warrant procedure under G. L. c. II I, § 102. St. 1955,
c. 770, §§ 5 and 58. Such an affirmation of the viability of both procedures
indicates that neigher of them was regarded as superseded by the other, and
that each was intended to operate in its pre-existing sphere of jurisdiction.
I therefore conclude that transfers of a prisoner from a correctional insti-
tution of the Commonwealth to the State Hospital at Bridgewater can be ef-
fected only in accordance with the provisions of G. L. c. 123, §§ 102 and
103, and that G. L. c. 127, § 97 does not authorize the Commissioner of
Correction to make such a transfer himself.
Very truly yours,
Elliot L. Richardson, Attorney General
P.D. 12 49
Number 9. July 19, 1967.
M. Joseph Stacey, Comptroller, Executive Office for Administration and
Finance
Dear Mr. Stacey: — You have requested my opinion on the effect of a
distribution to the Metropolitan Area Planning Council (the "MAPC") of
funds appropriated by Item 3015-05 of the Supplementary Budget for the
1967 Fiscal Year (St. 1966, c. 709, § 2).
Under Item 3015-05, $30,000 was appropriated from the Local Aid
Fund to the Department of Commerce and Development "for the reim-
bursement, on a matching basis, of regional planning agencies for a pro-
gram of planning studies. . . ." Since an appropriation from the General
Fund of $107, 000 had already been made directly to the MAPC for its
"expenses" in Item 0474-01 of the Budget for the same year (St. 1966, c.
4 1 1 , § 2), a question arose as to whether or not the MAPC was eligible to
share in the appropriation under Item 3015-05. In an opinion dated June 5,
1 967 to the Executive Director of the MAPC, I expressed the view that "the
MAPC is among the 'regional planning agencies' referred to in Item 3015-
05 . . . and hence is eligible to receive a portion of the funds appropriated
thereunder."
My opinion to the MAPC was, of course, confined to the issue of whether
or not such a distribution of funds to the MAPC was permissible, and did
not deal with the question of how such funds, once distributed, should be
accounted for. However, I did point out that under G. L. c. 6, § 114, sums
appropriated by the General Court directly to the MAPC are (within cer-
tain limits) thereafter recovered by the State Treasurer from the member cit-
ies and towns through annual assessments made upon them, and that "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."
You state in your letter that the above-quoted statement from my opinion
to the MAPC leaves you in doubt as to whether funds distributed to the
MAPC under Item 3015-05 may be expended by that agency, or may be
used solely to reduce assessments upon the constituent municipalities under
G. L. c. 6, § 114. Specifically, you have asked the following questions:
" 1 . May the MAPC spend the amount of an allocation made by
the Department of Commerce and Development from Item
3015-05 in addition to the amount appropriated to it under
a separate item, 0474-01 of Chapter 41 1 of the Acts of
1966?
"2. If the answer to Question #1 is in the negative, may the De-
partment of Commerce and Development allocate funds to
MAPC to be used only to reduce assessments on the cities
and towns on account of expenses made from appropria-
tions authorized by the Legislature directly to the MAPC?"
Since I am of the opinion that Question I calls for an affirmative answer,
no answer to Question 2 is required.
The stated purpose of Item 30 1 5-05 is "the reimbursement ... of region-
al planning agencies" for certain projects undertaken by them. The usual
50 P.D. 12
rule is that words appearing in statutes "shall be construed according to the
common and approved usage of the language. . . ." G. L. c. 4, § 6, Clause
Third. The word "reimburse" is ordinarily understood as a synonym for the
word "pay" with reference to "the return of an exact equivalent for an ex-
penditure. . . ." Webster's Third International Dictionary (1964), p. 1659.
It means "to pay back (an equivalent for something . . . expended) to some-
one "/c/., p. 1914.
In the present context the "someone" to be reimbursed is the MAPC, as
one of the "regional planning agencies" referred to in Item 3015-05. The
occasion for such reimbursement is the expenditure of other funds by the
MAPC (presumably from its appropriation under Item 0474-01) "for a
program of regional planning studies." Thus, once the Department of Com-
merce and Development is satisfied that such expenditures have been made
and orders a distribution of funds "for the reimbursement" of the MAPC
therefor, the conditions of Item 3015-05 have been fulfilled and the MAPC
may disburse the funds so distributed for any purpose which its statutory
powers permit.
The alternative interpretation of Item 3015-05 which is suggested by
Question 2 would mean that a distribution thereunder to the MAPC would
be nothing but a paper transaction. If that interpretation were adopted, the
amount of the "distribution" would merely be applied in reduction of the
annual assessments upon the member municipalities and the money in-
volved would never actually leave the State Treasury. It seems to me im-
probable that the Legislature would have chosen such a complex and round-
about procedure merely to accomplish the relatively simple objective of re-
ducing municipal assessments. Moreover, such an interpretation is difficult
to reconcile with the language of Item 3015-05: a "reimbursement" is a
payment on account of expenditures previously made and not a reduction in
the amount of a prospective charge; Item 3015-05 calls for the reimburse-
ment "of regional planning agencies" and not of their constituent cities and
towns.
While Item 3015-05 speaks in terms of "reimbursement. . . of regional
planning agencies" rather than reimbursement of their member communi-
ties, the communities, of course, are indirect beneficiaries. Funds distribut-
ed to the MAPC under Item 3015-05, unlike appropriations made directly
to it under Item 0474-01, are not recoverable from the municipalities. The
expenses to which the money so distributed is applied are, at least in theory,
expenses for which funds would otherwise have to be appropriated directly
to the MAPC. Hence, the practical effect of such a distribution, other things
being equal, may be to permit a reduction in the direct appropriations
thereafter needed by the MAPC, and a corresponding reduction in the as-
sessments upon the constituent municipalities. When I stated in my opinion
to the MAPC that a distribution of funds under Item 3015-05 would "have-
the effect of reducing the assessments upon these municipalities," I meant to
refer only to the possible consequences of such a distribution and not to the
legal conditions under which a distribution could be made or expended.
It is therefore my opinion that the MAPC may spend any sums distribut-
ed to it by the Department of Commerce and Development under Item
3015-05 of the 1967 Supplementary Budget, in addition to funds allocated
to it by direct appropriation.
Very truly yours,
Elliot L. Richardson, Attorney General
P.D. 12 51
Number 10. July 25, 1967.
Honorable Kevin H. White, Secretary of the Commonwealth
Dear Secretary White: — You have asked for my opinion on whether
you should accept for filing under G. L. c. 1 80 the Articles of Organization
of a corporation to be known as Fraternal Order of Eagles, John Adams
Aerie, No. 1 180, the stated purposes of which are:
"To unite fraternally for mutual benefit, protection, improve-
ment, social enjoyment and association, generally all persons of
the Caucasian race, of good moral character, who believe in a Su-
preme Being; to inculcate the principles of Liberty, Truth, Justice
and Equality; to perpetuate itself as a Fraternal Organization,
and to provide for its government, as the laws, by-laws, rituals, or
other organization rules and regulations may from time to time
provide. Said Aerie being incorporated in conformity with, sub-
ject to and under the jurisdiction and control of the laws of the
Fraternal Order of the Eagles." (Emphasis supplied.)
You state that:
". . . It would seem that public policy would dictate that the Com-
monwealth of Massachusetts would have a right to question
whether or not a charter should be issued to an organization with
a purpose clause as set forth in their articles of organization. Past
court decisions, however, regarding the functions of the Secretary
of State's Office would seem to indicate that this office cannot re-
fuse to issue a charter to this organization."
Assuming that all the requirements for incorporation have been satisfied,
it is my opinion that your understanding of the law is correct. General Laws
c. 1 80, § 2 provides that corporations organized under that chapter shall,
among other requirements, be formed in the manner prescribed in and sub-
ject to G. L. c. 1 56, §11, which provides:
"The articles of organization and the agreement of association
shall be submitted to the secretary who shall examine them and
who may require such amendment thereof or such additional in-
formation as he deems necessary. If he finds that the provisions of
law relative to the organization of the corporation have been
complied with, he shall endorse his approval on the articles.
Thereupon, the articles shall, upon payment of the fee provided
by section fifty-three, be filed in the office of the state secretary."
(Emphasis supplied.)*
It is settled that the approving authority under G. L. c. 156, § 31 has
only an administrative function to perform. As stated in Arnold v. Commis-
sioner of Corporations and Taxation, 327 Mass. 694, 701 :
"The duties imposed upon the commissioner [now the Secre-
tary of State] by G. L. (Ter. Ed.) c. 1 56, § 11, are not discretion-
ary but are limited to the administrative function of certification
according to law."
"St. l'J62, c. 750, <; 17 amended this section to its present form hy substituting the Secretary of State
for the Commissioner of Corporations and Taxation as the approving authority.
52 P.D. 12
This limitation has been held to preclude the approving authority from
withholding his approval because of his personal opinion of the undesirabil-
ity of the proposed organization. Elmer v. Commissioner of Insurance, 304
Mass. 194, 197. in relation to corporations organized under c. 180, when
you receive a report from the Commissioner of Public Welfare approving
the articles of organization and containing findings of fact as to the purposes
of the corporation, the present need therefor and the suitability of the appli-
cants, you "shall accept the findings of fact. . . ." G. L. c. 1 80, § 6. Thus
there is no room for you to substitute your own judgment for that of the
Commissioner.
I have considered the possible application of the Civil Rights Act of
1964, 42 U.S.C. § 2000(a), et seq., as well as the provisions of our G. L. c.
272, § 92A. The first of these statutes, however, does not extend to a pri-
vate club or other establishment not in fact open to the public, except to the
extent that the facilities of such establishment are made available to the cus-
tomers or patrons of an establishment that is a place of public accommoda-
tion. 42 U.S.C. § 2000(a) (e). General Laws c. 272, § 92A is similarly lim-
ited in scope. Nor does the United States or Massachusetts Constitution, as
thus far interpreted by the highest courts, prohibit the chartering of a pri-
vate club or similar institution having membership limitations of the kind in
question.
Accordingly, however understandably offensive the restriction in the Ar-
ticles of Organization before you may be, it is my opinion that under exist-
ing law, if you have received from the Commissioner of Public Welfare the
required approval and findings of fact, and if the other requirements for or-
ganizing a corporation under c. 1 80 have been satisfied, you must approve
the proposed articles of organization pending before you.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 1 1. July 25, 1967.
Honorable Charles N. Collatos, Commissioner of Veterans' Services
Dear Commissioner Collatos: — You have requested my opinion re-
garding your rights and obligations as Commissioner of Veterans' Services
in a matter before the Governor and Council.
You state that "The Commissioner of Veterans' Services for the City of
Somerville' granted benefits in excess o£ the standard budget, and reim-
bursement was denied under Section 6, Chapter 115" of the General Laws
which states in pertinent part:
". . . The Commissioner [of Veterans' Services of the Common-
wealth of Massachusetts] may decide upon the necessity of the
amount paid in each case, and may allow any part thereof which
he deems proper and lawful. . . ."
The Somerville agent then requested a hearing before the Governor and
Council.
The position of Commissioner of Veterans' Services for the C ity of Somerville is similar to that
commonly known as Veterans' Agent in other communities.
P.D. 12 53
You further state that "Although there is no authority in the statutes to
permit a hearing in such a situation, one was scheduled. Two members of
the Commissioner's staff did attend to explain the matter and to request a
dismissal. The Council, through one of its members, requested a personal
appearance of the Commissioner to personally explain the Directives that
are promulgated and issued." In concluding your letter, you request my opi-
nion as to your "position and attendance in a matter that is not properly be-
fore the Council and one in which [you] have sole powers and discretion
under the law."
It is my understanding that you did, however, appear before the Council
and that the matter in question was disposed of without formal action of any
kind by the Council, thus rendering the circumstances outlined in your re-
quest for my opinion moot and hypothetical.
In an opinion dated February 14, 1935, Attorney General Paul A. Dever
defined the settled practice relative to the issuance of formal opinions by the
Attorney General. He said:
"The long-continued practice of this department and the prece-
dents set by my predecessors in office indicate, what is undoubt-
edly 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 interpretations
of statutes or of the duties of officials thereunder, except as such
interpretations may be necessary to guide them in the perform-
ance of some immediate duty."
Attorney General's Report ( 1 935) p. 3 1 .
Attorney General Dever concluded with a statement as applicable to the
Department of the Attorney General today in 1 967 as it was in 1 935:
"The members of this department are always at your service for
consultation and assistance with reference to the work of your
Commission, but for the foregoing reasons I may not properly, in
a formal opinion, comply with the request contained in your let-
Very truly yours,
Elliot L. Richardson, Attorney General
Number 12. July 25, 1967.
Honorable Anthony P. DeFalco, Commissioner of Administration
Dear Commissioner DeFalco: — You have asked my opinion on
whether the Honorable Frank J. Murray, a Justice of the Superior Court
until his resignation on April 21,1 967 upon his induction into his present
office of Judge of the United States District Court for Massachusetts, is enti-
tled to continue in force his group life and health insurance issued through
54 P.D. 12
the Group Insurance Commission. You state that Judge Murray is not sev-
enty years of age and you correctly point out that notwithstanding his con-
tinuous service as a Justice of the Superior Court since 1 946, he is not eligi-
ble for a pension under G. L. c. 32, § 65A. You then ask whether he might
nevertheless be treated as a "Deferred Retiree" under G. L. c. 32A, § 10
and thereby remain eligible to continue his insurance in force.
After careful consideration of the matter, I am of the opinion that your
question must be answered in the negative. Judge Murray's insurance was
apparently issued under the provisions of G. L. c. 32A. In order for an in-
sured person, on the termination of his service for the Commonwealth to
continue in force his insurance issued under that chapter, he must have ei-
ther (!) retired or (2) be an employee "who has a right to retire but whose
retirement is deferred as provided in section ten of chapter thirty-two. . . ."
G. L. c. 32A, § 10.
It is my opinion that Judge Murray meets neither of these requirements.
The first requirement is not satisfied, since the termination of Judge Mur-
ray's service as a Justice of the Superior Court resulted from his resignation,
not his retirement. The second requirement is not satisfied for two reasons.
First, at the time of his resignation Judge Murray did not have a "right to
retire" (a term which I regard as meaning the right to receive a pension or
other payment upon termination of service) since as a member of the judici-
ary his right to a pension was conditioned on his continuation in service un-
til he reached the age of seventy. G. L. c. 32, § 65 A. A judicial pension is a
noncontributory benefit and thus carries with it no right to any payment if a
judge should leave the bench before he has attained the age of seventy even
though he may have satisfied the requirement in G. L. c. 32, § 65A that he
shall have also served for at least ten years.
Second, the condition relative to deferment of retirement as provided in
G. L. c. 32, § 10 is not satisfied since the right to defer receipt of a retire-
ment allowance is conferred only on a "member." That term in c. 32 is de-
fined, however, in section 1 of that chapter as:
" 'Member', any employee included in the state employees' re-
tirement system, in the teachers' retirement system or in any
county, city or town contributory retirement system established
under the provisions of sections one to twenty-eight inclusive, or
under corresponding provisions of earlier laws, and if the context
so requires, any member of any contributory retirement system
established under the provisions of any special law." (Emphasis
supplied.)
Not only is a Justice of the Superior Court not included in any of these
enumerated retirement systems, he is not regarded as an "employee," since
he does not come within the definition of that term in G. L. c. 32, § 1 . That
section defines an "employee," for the purposes of §§ 1-28 of c. 32, in the
case of "persons whose regular compensation is paid by the commonwealth"
(as is that of a Justice of the Superior Court) as:
"... any person, whether employed or appointed for a stated
term or otherwise, who is engaged in duties which require that his
time be devoted to the service of either such governmental unit in
each year during the ordinary working hours of regular and per-
manent employees, and who is regularly and permanently em-
P.D. 12 55
ployed in such service, including employees of the general court,
state officials, constitutional officers, members of the general
court or other persons elected by popular vote, but excluding
members of the judiciary. . . ." (Emphasis supplied.)
Thus Judge Murray does not meet the second element of the conditions for
qualification as a "Deferred Retiree."
I therefore conclude that Judge Murray is not entitled to continue in
force his group life and health insurance issued through the Group Insur-
ance Commission.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 13. July 26, 1967.
Honorable Hugh Morton, Chairman, Civil Service Commission
Dear Mr. Morton: — You have requested my opinion regarding the au-
thority of the Commissioner of Corporations and Taxation, without pro-
ceeding under G. L. c. 31, § 43(a), to "assign" a female employee holding
the permanent position of Senior Clerk in the Inheritance Tax Bureau, Di-
vision of State Taxes in the Department of Corporations and Taxation to a
position in the Bureau of Analysis and Processing in the same Division of
the Department. There is nothing to indicate that the duties of the two posi-
tions are the same, if that should be material.
General Laws c. 3 1 , § 43(a) provides in pertinent part:
"Every person holding office or employment under permanent
appointment in the official or labor service of the Common-
wealth, or of any county, city or town thereof, shall have unlimit-
ed tenure of office or employment, subject to the provisions of
this chapter and the rules made thereunder. He shall not be . . .
transferred from such office or employment without his consent in
writing, . . . except for just cause and for reasons specifically giv-
en him in writing." (Emphasis supplied.)
In your request you state that the employee was appointed to her position
as Senior Clerk in the Inheritance Tax Bureau on July 14, 1963 as the re-
sult of passing a promotional examination for the filling of two vacancies for
females in that Bureau. She has been a member of the staff of the Bureau
since April 4, 1961 .
On January 13, 1967 the employee was notified by letter signed by the
then Commissioner of the Department of Corporations and Taxation that
she was "assigned" to the Bureau of Analysis and Processing of the Depart-
ment. On January 18, 1967, she requested a hearing before the Civil Serv-
ice Commission under the provisions of G. L. c. 31, § 46A, alleging that
she was being transferred without her consent. ^ A hearing was held on Jan-
The relevant section of G. L. c. 31, S 46A provides ". . . if any person alleges that his employment or
compensation has been affected by action of the appointing authority in failing to follow the require-
ments of section forty-three, he may tile a complaint with the Civil Service Commission. . . . This
complaint may be filed with the request of the said person for hearing under the provisions of said
section forty-three and if it is determined by the Civil Service Commission that the said authority has
failed to follow the requirements of section forty-three or the rights of said person have been prejud-
iced thereby, the said commission may order said appointing authority to restore immediately said
person to his employment without loss of compensation or other rights."
56 P.D. 12
uary 27, 1967 before a disinterested person designated by the Chairman of
the Civil Service Commission in accordance with the requirements of G. L.
c. 31, § 43. It is in connection with this hearing that you ask the following
two questions:
"(•) Does the action of the Commissioner of Corporations and
Taxation . . . constitute a transfer from the Inheritance Tax
Bureau as the word 'transfer' is used in General Laws,
Chapter 3 1 , Section 43, despite the terminology of the word
'assigned' as used by the Commissioner?
"(2) If your answer to Question 1 is in the affirmative, do the
provisions of General Laws, Chapter 14, Section 3, exempt
the Commissioner from complying with the provisions of
General Laws, Chapter 3 1 , and more particularly the provi-
sions of Section 43 thereof?"
Your first question seems to assume that there would be a "transfer" be-
tween the two bureaus within the meaning of G. L. c. 3 1 , § 43, except pos-
sibly for the word "assigned" used by the Commissioner in his letter of Jan-
uary 13, 1967. I concur with your conclusion that there may be a transfer
within the meaning of G. L. c. 3 1 , § 43 between bureaus within the same
department and, indeed, a former Attorney General reached the same con-
clusion in like circumstances.^ Simply because the Commissioner chose to
use the word "assigned," the substance of this action is not changed. I there-
fore answer your first question in the affirmative.
As regards your second question, you state that it was the view of the
Commissioner of the Department of Corporations and Taxation that he
need not comply with G. L. c. 31, § 43 by virtue of G. L. c. 14, § 3, which
provides in relevant part:
"The commissioner shall assign to all officials, agents, clerks and
other employees of the department their respective duties, and
may transfer them." (Emphasis supplied.)
However, it is my opinion that the foregoing section does not render inappli-
cable the limitations fixed by the Civil Service Law. The context of the en-
tire section indicates that employment in the Department of Corporations
and Taxation is ordinarily subject to the Civil Service Law. Thus the fourth
paragraph of the section makes appointments and removals subject to that
Law "when applicable." In a similar situation the Supreme Judicial Court
held that a broad power in an appointing authority to "employ and remove"
employees does not render inapplicable the provisions of that Law. Walsh
V. Civil Service Commission, 300 Mass. 244. As stated by the court in that
case:
"The words 'employ and remove,' or other equivalent phrases
standing alone without qualification in statutes respecting public
employment, do not ordinarily render inapplicable the civil serv-
ice laws." page 246.
"Report of the Attorney General for the \ear Ending June 30, 1947, page 24, involving the change of
employment of an engineer from the Park Division of the Metropolitan District Commission to the
Commission's Sewerage Division. See G. L. c. 31, S 16A also dealing with transfers of civil service
employees and especially the portion which provides "No transfer shall be made without the consent
of the employee and the approval and consent of the appointing authority in ihc (Upiirinwnl or
departments involved." (Emphasis supplied.) Sections 43 and 16A must be read together. Cooper v.
Civil Service Commission, 314 Mass. 76.
P.D. 12 57
Therefore, in answer to your second inquiry, it is my opinion that the provi-
sions of G. L. c. 14, § 3 do not exempt the Commissioner of Corporations
and Taxation from complying with the provisions of G. L. c. 3 1 , §, 43 rela-
tive to transfers.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 14. July 31, 1967.
Honorable Theodore W. Schulenberg, Commissioner of Commerce and
Development
Dear Commissioner Schulenberg: — You have asked for my opinion
on certain questions relating to the renovation of a state aided low-rent
housing project. You state:
"The Lynn Housing Authority has made application for approval
by the Division of Housing within our Department of Commerce
and Development of a project involving a substantial remodeling,
reconstruction, repair and renovation of an existing state aided
Housing Project. The existing project known as 'American Park'
was completed some eighteen years ago under the applicable
provisions of Chapter 1 2 1 of our General Laws. It is a complete-
ly state aided low rental project and not federally aided. The Au-
thority now deems it necessary and has plans for an extensive re-
modeling, reconstruction and renovation job which includes en-
larging some of the units to make them available for larger fami-
lies of low income. The cost of this work will be quite substantial.
You then ask the following four questions, which 1 have renumbered for
convenience in answering:
" 1 . Are Sections 26 J and 26 NN of Chapter 1 2 1 as amended by
Chapter 705 of the Acts of 1 966 or any other sections of said
Chapter 121 applicable to a project of renovation, remodel-
ing, reconstruction and repair of an existing state aided low
rental Housing Project such as herein described? (Emphasis
in original.)
"2. Does the Division of Housing within the Department of
Commerce and Development have the authority to approve
an application from the Lynn Housing Authority for a proj-
ect herein described, thereby committing the Commonwealth
to obligations described in Chapter 1 2 1 as amended?
"3. If your answer [to Question 1 ] is 'yes', does the new project
of renovation etc. come within the scope of Section 6 of
Chapter 705 of the Acts of 1966, thereby qualifying it for
the annual contribution by the Commonwealth of 5% rather
than 2 '/2 % of cost?
"4. May it be determined in your opinion that Section 3 of Chap-
ter 705 of the Acts of 1 966 is not applicable to our instant
case?"
58 P.D. 12
General Laws c. 1 2 1 , § 26J (as most recently amended by c. 705 of the
Acts of 1 966) defines a "low-rent housing project," in relevant part, as fol-
lows:
". . . (2) any work or undertaking to provide decent, safe and san-
itary dwellings, apartments, or other living accommodations for
families of low income. . . The term 'project' may also be applied
to the planning of the buildings and improvements, the acquisi-
tion of property, the demolition of existing structures, the con-
struction, reconstruction, alteration and repair of the improve-
ments and other work performed in connection therewith. Con-
struction activity in connection with a project may be confined to
the reconstruction, remodeling or repair of existing buildings."
(Emphasis supplied.)
General Laws c. 1 2 1 , § 26NN begins as follows:
"The commonwealth, acting by and through the [Division of
Housing in the Department of Commerce and Development*],
may enter into a contract or contracts with a housing authority
for state financial assistance in the form of a guarantee by the
commonwealth of notes and/or bonds of the housing authority is-
sued to finance the cost of a housing project or projects, and an-
nual contributions by the commonwealth."
Since it is clear from the above -quoted portion of § 26NN that the Divi-
sion of Housing may, on behalf of the Commonwealth, give financial assist-
ance to a local housing authority for a "housing project," the answer to your
first question depends, as you correctly point out, upon whether or not a
"low-rent housing project" as defined in § 26J includes the renovation of an
existing project. Your second question raises the same issue.
The definition of a "low-rent housing project," quoted above, is very
broad. In relation to the making of renovations, the definition is sufficiently
comprehensive to include not only work performed on buildings acquired
by purchase but also work performed on buildings originally constructed by
a housing authority itself, as the Lynn project appears to have been. I find
nothing in the definition that excludes renovation of the latter class of build-
ings. Any suggestion that such renovations should be excluded is opposed
not only by the broad provision, already quoted, but by the purpose of the
statute "to provide decent, safe and sanitary dwellings, apartments, or other
living accommondations for families of low income." G. L. c. 121, § 26J.
Plainly, this objective could not be fulfilled if renovations of buildings ori-
ginally constructed by a housing authority itself were prohibited and the
structures were not merely allowed to decline into obsolescence but were re-
quired to lapse into that condition.
The answer to your second question requires but one more reference to
the statute. Section 26NN(b) of c. 121 states, in relevant part:
"Each such annual contribution by the Commonwealth to the
housing authorities shall he paid by the Commonwealth upon ap-
proval and certification hy the [Division of Housing] to the state
comptroller." (Emphasis supplied.)
1 assume that the Department's authority, so far as material to this opinion, is to be exercised by the
Division of Housing.
P.D. 12 59
This specific language, combined with the opening statement in § 26NN,
quoted above, leads me to conclude that the Division of Housing has the au-
thority to approve the stated application of the Lynn Housing Authority and
may thereby commit the Commonwealth to the indicated obligations.
Your third question concerns the effect of § 6 of c. 705 of the Acts of
1966. That section states in part:
". . . [T]his paragraph and the following paragraph shall apply to
those projects which are completed after (July I, 1966]. Each
contract for state financial assistance or for supplementary state
financial assistance shall provide that the commonwealth will pay
to the housing authority annual contributions; provided, however,
that the total amount of such additional annual contributions con-
tracted for by the commonwealth for any one year shall not ex-
ceed one million eight hundred and seventy-five thousand dollars.
The annual contributions for any one project shall he payable in
an amount not exceeding five per cent of the cost of the project,
as determined by the [Division of Housing]. ..." (Emphasis sup-
plied.)
Its effect was to increase the amount of the annual contributions by the
Commonwealth for any one project completed after July 1, 1966 from
2'/2% to 5% of the total cost. Since the renovation proposed by the Lynn
Housing Authority would, in my opinion, qualify as a ''project," it follows
that the five per cent rate will apply.
Your fourth question asks if § 3 of c. 705 of the Acts of 1966 is applica-
ble to this case. That section amends § 26AA of c. 1 2 1 relative to the condi-
tions of the Division's approval of a project and the requirements of a pub-
lic hearing thereon. The amendment specifically exempts, however, ". . .
projects involving the reconstruction, remodeling or repair of existing build-
ings. ..." I therefore conclude that § 26AA as thus amended is not applica-
ble to the instant case.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 15. July 31, 1967.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District Com-
mission
Dear Commissioner Whitmore: — You have requested an opinion as to
whether certain ramps that are to be built in connection with a high-level
bridge to be constructed by the Metropolitan District Commission (MDC)
over the Charles River from Leverett Circle in Boston to City Square in
Charlestown are "necessary approaches" to the bridge within the meaning
of the statute. Chapter 682 of the Acts of 1 964 (cited as Chapter 682),
providing for its construction. The question is important, since it concerns
the source of the funds to be used for payment of the ramps. If the ramps
are "necessary approaches," the Massachusetts Port Authority may contrib-
ute to the cost of their construction. Otherwise, the MDC must bear the en-
tire cost itself.
60 P.D. 12
Section 1 of c. 682 provides:
"In order to relieve congestion, to expedite the flow of vehicular
traffic, and to promote the public safety, the metropolitan district
commission, hereinafter referred to as the commission, is hereby
authorized and directed to construct and maintain a high level
bridge over the Charles river from Leverett circle in the city of
Boston northeasterly over said river, over mainline tracks of the
Boston and Maine Railroad Company, and over the proposed re-
located mainline tracks of the Metropolitan Transit Authority,
then back to grade to intersect with the proposed reconstructed
Rutherford avenue in the vicinity of City Square in the Charles-
town district of said city, together with the necessary approaches
thereto. '^ (Emphasis supplied.)
Accompanying your request for an opinion is an engineering firm's report
of a preliminary study of the project, containing drawings as well as verbal
descriptions. From Plate 3 of the drawings it appears that at the Leverett
Circle end of the bridge, as part of a new intersection, there will be four
ramps, designated as D, J, K and L, respectively. None of the ramps, how-
ever, lead traffic on or off the bridge. Instead, as you state in your letter,
"They divert traffic around it."
An explanation of the need for the bridge and the ramps and the manner
in which they will relieve traffic congestion appears in the introduction to
the engineering firm's report. After describing the expanding sources of
traffic across the lower end of the Charles River, the report states:
"It is obvious that the resulting congestion will be intolerable
unless something is done about it. . . The proposed high level
bridge will divert traffic from the worst trouble spot, namely, the
Fitzgerald Expressway Bridge, and will bring relief to all of the
expressways connected to it. . . The approach on the Leverett
Circle side includes a completely remodeled intersection with all
movements handled at grade, designed to carry traffic estimated
for [the year] 1990." (pp. 1-2.)
The report also states:
"In the Leverett Circle area, the public facilities to be taken
consist of a police station and adjacent recreational and parking
areas owned by the Metropolitan District Commission; also park-
ing areas owned by the Commonwealth of Massachusetts and
used by the Department of Public Works. A narrow strip of land
is required from the property on which high rise apartments are
located, but the taking will not affect the buildings or appurte-
nances. Another property affected consists of land on the north
side of Nashua Street, formerly occupied by some of the tracks in
the North Station. This land is owned by the Massachusetts Gen-
eral Hospital and is now used for parking." (p. 17.)
I turn now to the term "necessary approaches" in § 1 of c. 682. A strict
interpretation of the word "approaches" might confine it to ways that are
directly connected to each of the ends of the bridge. Such an interpretation
was used in Whitcher v. Somerville, 138 Mass. 454, which was an action
against a city for personal injuries resulting from a defect in a road running
under a railroad bridge. The city unsuccessfully asserted in defense that it
P.D. 12 61
was not liable since the road was an "approach" to the bridge and therefore
came within a statutory responsibility of railroads to maintain and keep in
repair railroad bridges, "with their approaches." There was evidence that
the road has been lowered by the railroad when the bridge was built. In re-
jecting the city's contention that the road was an "approach" to the bridge,
the Court said, at page 455,
"The approaches to a bridge are the ways at the ends of it, which
are a part of the bridge, or are appendages to it. . . By the com-
mon law, the duty to keep a bridge in repair carried with it the
duty to keep in repair, as a part of the bridge, the highway at each
end of it, for a space of three hundred feet. . . This limit of space
has not been adopted in this Commonwealth, but the highways at
the ends of a bridge have been recognized as, and called the ap-
proaches to it, in several decisions. . . As the bridge in the present
case was not a part of the highway, but was a part of the railroad
track, and crossed the highway over the level thereof, the ap-
proaches to it did not include any part of the highway, and the
city was not relieved of its liability to keep in repair that portion
of the highway where the accident happened."
Although I have found no later Massachusetts decisions dealing with the
question of what constitutes an "approach" to a bridge, I am nevertheless of
the opinion that the statement in Whitcher v. Somerville, quoted above, that
"The approaches to a bridge are the ways at the ends of it . . ." does not
control the answer to the question that you have presented. In the present
case, we have a bridge that forms part of a general plan, stated in § 1 of c.
682, quoted above, "to relieve congestion, to expedite the flow of vehicular
traffic, and to promote the public safety. . . ." The Whitcher case, on the
other hand, involved simply a railroad bridge, which, as the Court noted,
was "not a part of the highway, but was a part of the railroad track . . .";
and the bridge and the road that passed beneath it plainly did not form a
part of any larger traffic design.
With regard to a bridge that forms part of a general plan to expedite the
flow of automobile traffic, there is, in my opinion, no simple test to deter-
mine the "approaches" thereto. The question is rather essentially one of
fact, to be determined in each case primarily by the agency charged with the
execution of the particular project.
I find support for this view in the case of State v. Zcmgerle, 43 Ohio App.
30, 182 N.E. 644 (1932), where the court was called upon to construe the
term "necessary approaches" to a bridge, in a controversy involving the
meaning of that term in a resolution authorizing a bond issue to finance the
construction. County commissioners had determined that certain streets in
the immediate vicinity of the bridge should be improved for the purpose of
diverting travel to the bridge. Rejecting an objection that these streets did
not constitute "necessary approaches," the court said:
"A bridge without adequate approaches, such as to assure the
fullest and most convenient use of such bridge, would be of little
avail and would almost defeat the purpose of its erection. Those
who are by law directed and empowered to carry out the will of
the people ... are under a mandatory duty not only to build the
bridge, but also to build the necessary approaches thereto in or-
der to afford the fullest use of the monumental structure. . . .
62 P.D. 12
"All the contending parties are agreed that the officers now
sought to be enjoined are acting in good faith, and that it is mere-
ly a question of want of power to make the expenditures. There-
fore, the county commissioners having studied the situation in
good faith, as it is now conceded, and having determined that cer-
tain improvements are necessary as approaches to the bridge in
order to provide maximum use thereof, this court cannot substi-
tute its judgment for the judgment of the commissioners." 43
Ohio App. at page 37.
Like deference for the judgment of the public officials charged with res-
ponsibility for construction of a bridge was expressed by a majority of the
Supreme Court of Washington in State v. Yclle, 197 Wash. I 10, 84 P.2d
688 (1938). That case involved the construction by the Washington Toll
Bridge Authority of a toll bridge "together with approaches thereto wherev-
er the same is considered necessary or advantageous or practicable." In or-
dering a writ of mandamus to issue to compel approval of certain vouchers
relating to certain work that the Authority regarded as constituting "ap-
proaches," the court stated,
"There is no question of bad faith urged in this action; thus it
remains only to consider whether the Authority abused its discre-
tion in the determination of the meaning and extent of the
approaches.
". . . In considering the question presented we must view the
project as a whole and ascertain the purpose sought to be accom-
plished. . .
"It was a manifest intention of the legislature to give to the Au-
thority all those powers necessary to cope with the intricate ques-
tions incident to our modern and complex problems of transpor-
tation, and to vest in the Authority a wide discretion in the exer-
cise of those powers." 197 Wash, at pages 1 17 and 122.
For like reasons, in a complex factual situation such as the present one, I
believe that it would be inappropriate for me to attempt to make an inde-
pendent determination of whether the ramps involved in the construction of
the Leverett Circle bridge are "necessary approaches" thereto. Moreover,
the Legislature appears to have lodged with the MDC and the Boston Port
Authority the right to make the determination themselves. Thus § 4 of c.
682 provides:
"No monies shall be expended by the [MDC| under this act
unless the [Massachusetts Port Authority] shall have entered into
an agreement with the [MDC] , approved as to form by the attor-
ney general, to pay to the [MDC] a sum equal to one half the
cost of the construction authorized in section one [for the bridge
and necessary approaches ] , if the total cost thereof does not ex-
ceed three million dollars; and if the total cost of said construc-
tion exceeds three million dollars, to pay to the [MDC] that part
of such total cost which is in excess of one and one half million
dollars.
"The 1 Massachusetts Port Authority] is hereby authorized to
enter into such agreement and do all things necessary under this
act, notwithstanding any contrary provision of chapter four
P.D. 12 63
hundred and sixty-five of the acts of nineteen hundred and fifty-
six [the act creating the Authority] ."
You ask whether — if the question is, as I regard it to be, one of fact — the
MDC and the Authority may resolve the matter in their interagency agree-
ment to be executed under the foregoing section. It is my opinion that such
a resolution would indeed be appropriate and that the interagency agree-
ment, entered into in good faith and not in an abuse of discretion, will be a
final determination of the matter.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 16. August 9, 1967.
His Excellency John A. Volpe, Governor of the Commonwealth
Dear Governor Volpe: — You have requested my opinion as to whether
the advice and consent of the Executive Council must be obtained in ap-
pointing a person to fill a vacancy in the office of district attorney.
General Laws c. 54, i^j 142, in relevant part, states:
"Upon a vacancy in the office of district attorney ... the gover-
nor with the advice and consent of the council may appoint some
person thereto until a district attorney ... is qualified."
Although the language of § 142 by its terms appears to require the advice
and consent of the council, this language must be read in connection with
the later language of the Acts of 1964, c. 740, § 3. Section 3 provides, in
relevant part:
"Subject to section two of this act [not here relevant] and ex-
cept as required by the constitution of the commonwealth, so
much of each provision of the General Laws ... as requires the
advice and consent of the council to any appointment in the exec-
utive department ... is hereby repealed."
Because the Constitution of the Commonwealth does not require the ad-
vice and consent of the Council with respect to interim appointments to the
office of district attorney, the only relevant question is whether such an ap-
pointment is an "appointment in the executive department" within the
meaning of c. 740, § 3.
"Executive department" is defined by § 1 of c. 740 as follows:
"As used in this act, the phrase 'executive department' shall in-
clude, without limitation, all departments, divisions, boards, bu-
reaus, commissions, institutions, councils and offices of state gov-
ernment and of county government, and any instrumentality or
agency within or under any of the foregoing, whether or not serv-
ing under the governor or under the governor and council, and
any independent authority, district, commission, instrumentality
or agency, but expressly excluding therefrom the legislative and
judicial departments and any instrumentality or agency of a city
or town."
64 P.D. 12
It is my opinion that the office of district attorney is encompassed within
the broad language of § 1 , and is therefore an office "in the executive de-
partment" as that phrase is used in § 3. This result is consistent with an ear-
lier Opinion of the Attorney General. See 6 Op. Atty. Gen. 1921, pp. 360-
362.
It follows from this that the approval of the Executive Council is not re-
quired as to an interim appointment to the office of district attorney under
G. L. c. 54, § 142.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 17. August 9, 1967.
Honorable Howard Whitmore, Jr., Commissioner, Metropolitan District
Commission
Dear Commissioner Whitmore: — You have asked for my opinion on
whether the Metropolitan District Commission (MDC) may, without incur-
ring liability to a contractor, reduce by one foot the depth to which the con-
tractor under his contract with the MDC is required to dredge a portion of
the Mystic and Maiden Rivers. For the reasons set forth below, I am of the
opinion that the MDC may make the change, without incurring liability
therefor.
The contract in question originally provided for excavation to a depth
designated as elevation 1 00. Because of an unexpected increase in certain
costs of the project, your engineers have recommended that the amount of
dredging be reduced by raising the dredging depth to elevation 101. Howev-
er, the contractor asserts that he calculated his bid price on the assumption
that he would use barges that would need the deeper draft of elevation 1 00
for their intended heavy loading. The revision to elevation 101 would, it is
said, result in less water for flotation of the barges and would prevent them
from being loaded beyond 50% of their capacity. The contractor's expenses
would thereby be increased.
However, the "Information for Bidders" issued in connection with the
letting of the contract provided:
"All bids will be compared on the basis of the estimate of the
quantities of work to be done as set forth in the proposal, and the
Commission does not expressly or by implication agree that the
actual amount of work will correspond therewith, but reserves the
right to increase or decrease the amount of any class or portion of
the work, as may be deemed necessary or expedient by the Com-
mission."
Further, the contract itself contained several pertinent provisions. Section
2(0 of the Special Provisions stated:
"Dredging lines shown on the drawings or modified as directed
by the Engineer indicate only the pay lines to which excavation
will be measured and paid for, except as otherwise provided.
They are not intended to and do not necessarily represent the ac-
tual lines to which excavation must be made to satisfactorily per-
P.D. 12 65
form the work. The actual lines necessary to perform the work
may vary from those shown, depending on the material dredged
and on the method of dredging applied. The Engineer may
change any slope or dredging line as required by unusual condi-
tions or existing structures encountered. However, unless other-
wise directed by the Engineer, excavations must be made at least
equal to or lower than the elevations indicated on the contract
drawings."
Article XVII of the General Provisions, a broader provision, stated:
"The Engineer may make alterations in the line, grade, plan,
form dimensions or materials of the work, or any part thereof, ei-
ther before or after the commencement of construction and may
increase or decrease the amount of any class or portion of the
work as may be deemed necessary or expedient and an increase
or decrease in the quantity for any item shall not be regarded as a
sufficient ground for an increase or decrease in the prices nor in
the time allowed for the completion of the work, except as pro-
vided in this contract. . . . The Contractor agrees that he has en-
tered into. this agreement ujDon his own examination of the loca-
tion of the proposed work and the character of the work required,
and not upon any statements made or plans furnished by the
Commission or any officer, employee or agent thereof."
A clause very similar to this last cited provision was involved in the re-
cent case of Wes- Julian Construction Corporation v. Commonwealth, Mass.
Adv. Sh. (1967) 103. In that case a contract for the construction of the
Southeast Expressway contained a clause (p. Ill, footnote 5) reading in
part:
"An increase or decrease in the quantity of any item shall not be
regarded as cause for an increase or decrease in the prices. ..."
The contract in that case required the excavation of two classes of materials.
Although the cost of removal of one class was nearly eight times that of the
other, the contractor submitted a combined bid of one dollar a cubic yard,
based on the ratio of the originally required amounts of each class. After the
execution of the contract, the Commonwealth reduced the quantity of each
class of materials but not by the same proportion in which they originally
were to be excavated. As a result the contractor incurred an increased cost
of $13,574. The Supreme Judicial Court ruled, however, that the quoted
contract clause controlled the outcome and denied the contractor's claim for
additional compensation.
In the matter submitted by you, the reference in Section 2(f) of the Spe-
cial Provisions to the power of the engineer to "change any slope or dredg-
ing line as required by unusual or existing structures encountered" does not
purport to limit the provisions of Article XVII, nor are the two provisions
incompatible. Specifically, I do not regard the Engineer's authority to
change a dredging line to be limited to circumstances caused by "unusual
conditions or existing structures encountered." Although that phrase is
found in Section 2(f), I regard it as only a specific application of the broad
authority given by Article XVII of the General Provisions to make changes.
In consequence, I conclude that on the facts presented to me you may, upon
the making by the Engineer of an alteration in the dredging depth, proceed
66 P.D. 12
under Article XVII to make the indicated change of elevation, without in-
curring liability to the contractor therefor.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 18. August 1 1, 1967.
Outdoor Advertising Board
Gentlemen: — You have requested my opinion as to whether a certain
billboard is exempt from the outdoor advertising regulations promulgated
by your Board pursuant to G. L. c. 93, § 29. For the reasons set forth be-
low, I conclude that it is not exempt.
You state that on the premises of the Boston Bowl, a bowling alley, on
William T. Morrissey Boulevard, Dorchester, there is a billboard advertis-
ing Cott Beverages; that the Cott Bowling League bowls on the premises;
and that Cott Beverages can be purchased there. I assume that the beverages
are sold for consumption on the premises. I also assume that the Boston
Bowl occupies the entire premises.
General Laws c. 93, § 30 forbids the maintenance of any billboard or
other advertising device on any public way or on private property within
public view from any highway, public park or reservation, which advertises
any business or article unless it conforms to the regulations established by
your Board under G. L. c. 93, § 29. Section 30, however, exempts from the
regulations signs and devices which are —
"erected and maintained in conformity with law and which adver-
tise or indicate either the person occupying the premises in ques-
tion or the business transacted thereon, or advertise the property
itself or any part thereof as for sale or to let and which contain no
other advertising matter ... or which are maintained on land
owned by a person . . . engaged in the outdoor advertising busi-
ness if owned by the same person ... on [January 1, 1925] . . . ."
On the facts set forth in your request, it is my opinion that the Cott bill-
board in question does not come within the exemption, since it does not
"advertise or indicate either the person [the Boston Bowl] occupying the
premises, or the business [bowling | transacted thereon"; and it does not, of
course, "advertise the property itself or any part thereof as for sale or to
let.'' (I assume that the exemption of persons engaged in the outdoor adver-
tising business is not applicable.)
In reaching this conclusion, I have given careful consideration to the case
of Attorney General v. J. P. Cox Advertising Agency, 298 Mass. 383. That
case involved signs which were located on grocery stores and drug stores,
and which advertised products such as beverages, chewing gum, candy and
cigars regularly sold therein. The Supreme Judicial Court decided that the
signs must be regarded as advertising "the business transacted" on the
premises within the meaning of G. L. c. 93, § 30, since they advertised arti-
cles sold therein and had some tendency to induce passers-by to enter the
premises to buy the advertised items. It was not necessary, the court held,
for the sign to indicate the general character of the store — grocery or drug
store — to which the sign pertained.
P.D. 12 67
It would, in my opinion, be an unwarranted extension of the J. P. Cox
Advertising case to regard it as affording an exemption in the present situa-
tion. In each of the cases where the J. P. Cox Advertising case exempted the
sign, the business in question carried on as its principal activity the sale of
articles — groceries, beverages, tobacco and candy — of the same general
character as those advertised on the signs. In the present case, however, the
Boston Bowl has as its principal activity the rendering of a service — bowl-
ing — not the sale of beverages. Its dealing in beverages is only incidental
to its principal business, bowling, and therefore does not, in my opinion,
constitute "the business transacted" on the premises within the meaning of
G. L. c. 93, § 30. I recognize that there may be cases where there may be
considerable difficulty in distinguishing between a principal business and
one that, as in the present case, is only incidental. As each such case arises,
it will have to be considered on its own facts.
In summary, then, it is my opinion that the billboard to which you refer
in your request for an opinion is not exempt from regulations promulgated
pursuant to G. L. c. 93, § 29.
Very truly yours,
Elliot L. Richardson, Attomev General
Number 19. August 1 1, 1967.
Honorable Edward J. Ribbs, Commissioner of Public Works
Dear Commissioner Ribbs: — You have asked for my opinion on sever-
al questions relative to the decline in the level of Kingsbury Pond, a great
pond, in the town of Norfolk, as affected by action of the adjacent town of
Franklin in pumping water from an artesian well. A report, dated January
9, 1967, entitled "Drastic Lowering of Kingsbury Pond, Norfolk Massachu-
setts," to which you make reference, prepared by the United States Geologi-
cal Survey in cooperation with the Massachusetts Department of Public
Works, gives the relevant facts.
The report states that during recent years the level of the pond has
dropped to a level about 13 feet below normal high water and 8.4 below its
previous recorded low level in 1949. In this period the area of the pond has
shrunk from 26 acres to about 9 acres. The entire northwestern part of the
pond is now dry, leaving many residents of the pond without use of their
docks, boathouses, and other shore facilities. Wells are also drying up.
Property values are said to have declined and the market for homes around
the pond is said to be nonexistent.
On July 3, 1964, the adjacent town of Franklin began pumping water
from an artesian well that it had dug for the purpose of increasing its water
supply. The well is next to a certain tract of 6.87 acres in Norfolk that
Franklin acquired at about that time by authority of c. 437 of the Acts of
1964, which authorized the latter town, with the assent of the Selectmen of
the town of Norfolk, to acquire the tract "for the purpose of increasing
[Franklin's] water supply. . . ." Precisely how this increase was to be ac-
complished does not appear. In any event, on the facts submitted, the arte-
sian well does not appear to be situated on this tract.
Following the digging of the well, the level of Kingsbury Pond, which
68 P.D. 12
had, it seems, already been dropping because of a drought, continued to
drop, and it has since continued to do so. Production from the well averaged
about eleven million gallons a month in the years 1964 and 1965, rising to
eighteen million gallons a month in 1966. Production in the summer
months, however, is substantially higher than the average. Yet, despite the
well's addition to Franklin's water supply, the facts which have been pre-
sented to me indicate that Franklin still lacks an adequate supply of water
to meet its present and future demands.
You also state that the town of Norfolk is convinced that the well is the
"direct and primary cause" of the present condition of the pond. Support
for this conclusion is contained in the foregoing report of the United States
Geological Survey, which states that the slope of the ground-water inflow to
the pond has been reversed as the result of the expansion of a "cone of de-
pression" extending from the well to an area that includes the pond. This
expansion has probably occurred since July 3, 1964.
Your request for an opinion also refers to c. 27 of the Resolves of 1967
which reads as follows:
'^Resolved, That the department of public works, through its
division of waterways, is hereby authorized and directed to make
an investigation and study relative to dredging and cleaning
Kingsbury Pond in the town of Norfolk and the feasibility of di-
verting a portion of the waters of the Mill River in said town into
Kingsbury Pond. Said department shall report to the general
court the results of its investigation and study and its recommen-
dations, if any, together with estimates of cost, and drafts of legis-
lation necessary to carry such recommendations into effect by fil-
ing the same with the clerk of the house of representatives on or
before the last Wednesday of January, nineteen hundred and six-
ty-eight."
Mill River, according to a map annexed to the report of the United States
Geological Survey, is located principally in the town of Norfolk.
Based on the foregoing facts, you ask the following questions, the order
of which 1 have rearranged for convenience in answering.
1 . "Has the Massachusetts Department of Public Works the au-
thority to raise or lower the level of Kingsbury Pond?
2. "Under the above facts has the Massachusetts Department of
Public Works the right to request [require?] that the town of
Franklin restrict its use of its artesian well allegedly contrib-
uting to the extremely low level of Kingsbury Pond?
3. "Has the Massachusetts Department of Public Works plain
and explicit legislative authority to divert a portion of Mill
River into Kingsbury Pond on a permanent or temporary ba-
sis?"
Since Kingsbury Pond has recently had an area of 26 acres, it is a great
pond within the meaning of both G. L. c. 9 1 , § 35 ' and G. L. c. 1 3 1 , § 1 .2
"The provisions of this chapter relative to great poiuis shall apply only to ponds containing in their
natural slate more than ten acres of land. . . .'"
~" [T] he following words shall have the following meanings . . .
" 'Great pond', a natural pond the area of which is twenty acres or more."
P.D. 12 69
As such, it is under the custody and control of the Waterways Division of
the Department of Public Works. G. L. c. 91, § 1 1. In G. L. c. 91, § 19, it
is provided:
"Except as authorized by the general court and as provided in
this chapter, no structure shall be built or extended, or piles driv-
en or land filled, or other obstruction or encroachment made, in,
over or upon the waters of any great pond below the natural high
water mark; nor shall any erection or excavation be made at any
outlet thereof whereby the water may be raised or lowered."
In the recent case of Sacco v. Department of Public Works. Mass. Adv.
Sh. (1967) 1005, it was said at p. 1006,
"The great ponds of this Commonwealth are among its most cher-
ished natural resources. Since early times they have received spe-
cial protection."
Again, as stated in Attorney General v. Jamaica Pond Aqueduct Corpo-
ration, 133 Mass. 361, 364,
"The great ponds of the Commonwealth belong to the public,
and, like the tide waters and navigable streams, are under the
control and care of the Commonwealth. The rights of fishing,
boating, bathing, and other like rights which pertain to the public,
are regarded as valuable rights, entitled to the protection of the
government."
Applying the foregoing principle, it has been held that in the absence of
explicit authority from the Legislature, a well in the vicinity of a great pond
cannot be dug if it will intercept underground waters which supply the
pond. Attorney General v. Jamaica Pond Aqueduct Corporation, 133 Mass.
361. The fact that a city or town may be the agency which intercepts the
flow does not change this rule. See Stoneham v. Commonwealth, 249 Mass.
112, 118, holding that a town has no proprietary rights in the waters of a
great pond. It follows that a town may not use the waters as a source of its
water supply, at least if such use conflicts with the public's rights in the
pond.
Turning now to the questions raised by your request for an opinion, it is
my view that your Department, as the agency charged with the control and
care of great ponds, and under its statutory authority and indeed its duty
given by G. L. c. 91, § 11 concerning the "improvement, development,
maintenance and protection of . . . great ponds," may take appropriate ac-
tion to raise the Kingsbury Pond to its former level. Lacking more detailed
facts, I cannot express an opinion as to the validity of any particular action
that may be contemplated. Specifically, for lack of sufficient facts, I am una-
ble to express an opinion on the application of G. L. c. 9 1 , §§ 13 and 1 9 to
any particular plan. Section 19, already quoted in this opinion, places cer-
tain restrictions on various activities such as the building of structures and
the making of obstructions "in, over or upon the waters of any great pond
below the natural high water mark . . ." and the making of erections or ex-
cavations "at any outlet thereof whereby the water may be raised or low-
ered." Section 1 3 vests in your Department the power to license certain con-
struction and other activities in great ponds, with a proviso that a license
"shall not validate acts beyond the line of riparian ownership or affecting
the level of the waters in such [a] pond unless approved by the governor
and council."
70 P.D. 12
Yet whatever the exact scope of the foregoing limitations may be as ap-
plied to a particular set of facts, I am of the opinion that they are all de-
signed to preserve great ponds in their natural state and at their normal lev-
els. They should not be construed in a way that will restrict action that may
be necessary to restore the depressed level of a great pond, such as Kingsbu-
ry Pond in the present circumstances, as nearly as may be to its natural
level.
Your second question asks whether your Department has "the right to re-
quest [require?] that the Town of Franklin restrict its use of its artesian
well allegedly contributing to the extremely low level of Kingsbury Pond?"
It is my opinion that if your Department determines that there is a causal
connection between the use of the well and the decline in the level of the
pond, it may then, in the exercise of sound discretion, order the town of
Franklin to restrict its use of the well. The Jamaica Pond Aqueduct case,
already cited in this opinion (133 Mass. 361), provides adequate legal sup-
port for this conclusion. In reaching this result, I am not unmindful of the
important public interest of the town of Franklin in maintaining an ade-
quate supply of water for its citizens. This fact should be given careful con-
sideration by your Department in fixing the scope of an order to cease and
desist and the timing of action to be taken thereunder.
Your third question asks whether your Department has ''plain and explic-
it legislative authority to divert a portion of Mill River into Kingsbury Pond
on a permanent or temporary basis." Mill River, you state, is a tributary of
the Charles River, and diverting water from it will take water from the
Charles River watershed.
I answer this last question in the negative. I know of no statute that plain-
ly and explicitly authorizes such diversion.
The problems raised by your questions pose important issues of public
policy. To the extent that existing law is not adequate to resolve them, fur-
ther legislation may be required.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 20. August 11, 1967.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District Com-
Dear Commissioner Whitmore: — You have asked for my opinion on
(1 ) whether your determinations of the class and aggregate amount of work
that a prospective bidder is qualified to perform are to be treated as public or
confidential records and (2) whether the Metropolitan District Commission
(MDC) and the Department of Public Works (DPW) may exchange infor-
mation which a prospective bidder is required to submit.
General Laws c. 29, § 8B, as most recently amended by St. 1967, c. 54,
provides in part:
"The commissioner of public works or the commissioner of the
metropolitan district commission shall require that any person
proposing to bid on any work, excepting the construction, recon-
P.D. 12 71
struction, repair or alteration of buildings, to be awarded by the
department of public works or by the metropolitan district com-
mission, respectively, and the commissioner of public works shall
require that any person proposing to bid on any such work to be
awarded by a municipality under section thirty-four of chapter
ninety,'^' submit a statement under the penalties of perjury setting
forth his qualifications to perform such work. Such statement
shall be in such detail and form and shall be submitted at such
times as such commissioner may prescribe under rules promulgat-
ed by said department or commission, respectively, subject to the
requirements of chapter thirty A. Such rules may require such in-
formation as may be necessary to implement this section and may
establish a basis for the classification and maximum capacity rat-
ing of bidders which shall determine the class and aggregate
amount of work such bidders are qualified to perform. The state-
ment shall set forth, among other matters that may be prescribed
by the rules, the proposed bidder's financial resources, his experi-
ence, the number and kinds of equipment which he has for use on
such work, and the number, size and completion dates of other
construction jobs, whether in this state or another state, which he
has under contract. The information contained within such state-
ment, together with other relevant available information and the
proposed bidder's past performance on work of a similar nature,
may be considered by said department or commission in deter-
mining whether or not the proposed bidder is qualified to perform
any specific work for which proposals to bid are invited.
"Such statement shall be in such detail and form and shall be
submitted at such times as such commissioner may prescribe un-
der rules promulgated by said department or commission, respec-
tively, subject to the requirements of chapter thirty A. Such rules
may require such information as may be necessary to implement
this section and may establish a basis for the classification and
maximum capacity rating of bidders which shall determine the
class and aggregate amount of work such bidders are qualified to
perform. The statement shall set forth, among other matters that
may be prescribed by the rules, the proposed bidder's financial re-
sources, his experience, the number and kinds of equipment
which he has for use on such work, and the number, size and
completion dates of other construction jobs, whether in this state
or another state, which he has under contract.
"Based on information received and available and on past per-
formance of the prospective bidder on work of a similar nature,
each such commissioner, acting through a prequalification com-
mittee consisting of engineering personnel of said department or
commission, respectively, to be appointed by him, shall deter-
mine the class and aggregate amount of work that a prospective
bidder is qualified to perform, and shall limit a proposed bidder
to such class and aggregate amount of work as he may be quali-
fied to perform. Said department or commission shall limit the
bid proposals to be furnished to a prospective bidder to such bid-
ders as are determined by its commissioner to have the classifica-
tion and capacity rating to perform the work required.
G. L. c. 90, S 34 (relating to the use of the Highway Fund),
72 P.D. 12
"Any such statement filed with either such commissioner by a
prospective bidder shall be confidential, and shall be used only by
the department of public works or the metropolitan district com-
mission, as the case may be, in determining the qualifications of
such prospective bidder to perform work for said department or
commission, or for a municipality under the provisions of said
section thirty-four. No information contained in such statement
shall be imparted to any other person without the written consent
of said bidder."
I will begin with your second question (relative to exchange of informa-
tion between the MDC and DPW). The statute says that the statements sub-
mitted by prospective bidders "shall be confidential, and shall be used only
by the department of public works or the metropolitan district commission,
as the case may he, in determining the qualifications of such prospective
bidder to perform work for said department or commission, or for a munici-
pality under the provisions of said section twenty-four [relative to the use
of the Highway Fund] ." (Emphasis supplied.) The emphasized words clear-
ly indicate that the information is to be used exclusively by the agency re-
ceiving it. Therefore, it is my opinion that the MDC and the DPW may not
exchange information contained in a contractor's statement under the stat-
ute.
Your first question concerns the public or confidential status of your de-
termination of the class and aggregate amount of work a prospective bidder
is qualified to perform. Section 8B requires you, acting through a prequalifi-
cation committee composed of engineering personnel from your commis-
sion, to make this determination based upon information received, other in-
formation already available and past performance of the contractor on work
of a similar nature. The final determination will presumably be in the form
of a simple statement that the contractor is capable of performing one or
more kinds of work and is rated as having a maximum performance capaci-
ty, expressed in dollars.
Although § 8B states that the information on which your determination is
based "shall be confidential," it is silent on the question whether your deter-
mination based thereon shall also be confidential. Hence, unless the statute
impliedly contains such a requirement, your determination, which will of
course be written, will be a "public record" within the meaning of G. L. c.
4, § 7, Twenty-Sixth,* and will be subject to public inspection under G. L.
c. 66, § 10.**
After careful consideration I have concluded that the statute does not
make your determination confidential. Presumably, the reason why § 8B
provides that the information submitted to you shall be confidential is that it
may contain peculiarly private matters such as the names and addresses of
creditors and debtors, as well as profit-and-loss statements. This informa-
tion could, in fact, go far beyond that required to be included in a certificate
of condition required to be filed by a corporation with the Secretary of the
Commonwealth. Hence, the understandable concern of the Legislature in al-
lowing such data when furnished to you to be kept confidential.
'""Public records" shall mean any written or printed book or paper, any map or plan of the common-
wealth, or of any county, district, city or town which is the property thereof, and in or on which any
entry has been made or is required to be made by law. . . ."
"Every person having custody of any public records shall, at reasonable times, permit them to be
inspected and examined by any person, imder his supervision, and shall furnish copies thereof on
payment of a reasonable fee. . . ."
P.D. 12 73
On the other hand, a mere determination of the class and aggregate
amount of work that a contractor is qualified to perform does not disclose
peculiarly private matters. In fact, in view of the general policy of promot-
ing open, free and competitive bidding on government contracts (see G. L.
c. 29, § 8A), it could well be in the public interest to treat your determina-
tion as public so that unsuccessful bidders on your Commission's contracts,
as well as the public generally, may be assured that contracts are not being
awarded to ineligible bidders. I recognize the possibility that your determi-
nation respecting one contractor may be used by other contractors to ascer-
tain whether the first contractor is likely to be a rival bidder on a particular
contract, and that the knowledge thus obtained may affect the bids that the
other contractors may then submit. Yet I am not persuaded that this possi-
bility is sufficient in itself to justify reading into § 8B a restriction which its
language does not contain.
My conclusion of the public nature of your determination is, as I have
indicated, based on the assumption that your findings will consist merely of
a statement of ( 1 ) the kinds of work that a contractor is capable of doing
and (2) his maximum performance capacity, expressed in dollars. If, howev-
er, you should go beyond the simple statement that I assume you will make,
then consideration would have to be given to the question whether the en-
larged statement might be an indirect means of releasing the information
that has been defined as confidential, and thereby be in violation of the
statute.
In short, having weighed the Legislature's expressed declaration of con-
cern with maintaining a fair system of competitive bidding on MDC con-
tracts against its comparably explicit intention to protect the right of a con-
tractor to keep his private affairs confidential, I have concluded that if the
Legislature had intended that a determination such as 1 have assumed you
will make under the statute should be confidential, it would have said so.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 21. August 11, 1967.
William C. Maiers, Clerk House of Representatives
Dear Sir: — You have transmitted to me the following Order adopted
by the House of Representatives on July 10, 1967:
"[T]he Attorney General of the Commonwealth be forthwith
requested by the House of Representatives to render an opinion
to be delivered to the Speaker and Clerk of the House of Repre-
sentatives as soon as may be on the following question: —
In view of the definition of the term 'Airport properties' in par-
agraph (b) of Section 1 of Chapter 465 of the Acts of 1956, as
amended by Section 1 of Chapter 599 of the Acts of 1958, and
particularly of the exclusion from such definition of 'that part of
Logan Airport now under lease to United States of America nor
that part of Logan Airport now used or controlled by the military
division of the commonwealth for purposes of the air national
guard', and considering the provisions of Section 4 of said Chap-
74 P.D. 12
ter 465 which limit the power of said Port Authority to acquire
such part of Logan Airport, does the Massachusetts Port Authori-
ty own or have control over any of the aforementioned part of
Logan Airport which is not at present leased to the United states
of America or which is not used or controlled by the military di-
vision of the Commonwealth for purposes of the Air National
Guard?"
Since the Order does not describe in detail the areas involved and the his-
tory of their use and control, it does not permit me to make any factual de-
terminations as to specific parcels of real estate. In any event, determination
of questions of fact in a matter of this type is not within the province of the
Attorney General. See G. L. c. 12, §§ 1-1 1 A (as amended through St. 1966,
c. 472). I therefore confine my answer to an analysis of the applicable legal
principles.
The Massachusetts Port Authority (the Authority) was created by St.
1956, c. 465, § 2. Section 5 of this act stated that "Title to the airport prop-
erties shall be vested in the Authority upon the payment" of specified sums
to the State Treasurer. The term "airport properties" was defined in § 1 (b),
as follows:
'The term 'airport properties' shall include the General Edward
Lawrence Logan International Airport, hereafter called the Lo-
gan Airport, and Laurence G. Hanscom Field, together with all
buildings and other facilities and all equipment, appurtenances,
property, rights, easements and interests acquired or leased by the
commonwealth in connection with the construction or the opera-
tion thereof and in charge of the state airport management
board.
"The term 'airport properties' shall not be construed to mean that
part of Logan Airport now under lease to the United States of
America nor that part of Logan Airport now used or controlled
by the military division of the commonwealth for purposes of the
air national guard." (hereafter called "the Excepted Areas" [Em-
phasis supplied.])
Sections 3(k) and 4 of the act state that nothing in the act shall be construed
to confer upon the authority any power to take by eminent domain under
existing or future statutes any part of [the Excepted Areas] . The final para-
graph of § 23 stated that "the commonwealth, acting by its military divi-
sion, shall have the right, in connection with the retention of title to a por-
tion of Logan Airport, as provided in sections one (b), three (k) and four, to
use for purposes of the air national guard the facilities of said airport neces-
sary or proper for the air national guard to perform its present or future as-
signed missions."
In 1958, St. 1956, c. 465, § 2 was amended extensively by St. 1958, c.
599. The principal purposes of this amendment were to increase the maxi-
mum interest rate on Authority bonds from four to five per cent and to de-
lete references in the original statute to the Sumner Tunnel (transferred to
the Massachusetts Turnpike Authority by St. 1958, c. 498).
The "Definitions" section of St. 1956, c. 465 was struck out by St. 1958,
c. 599, § 1, and a new "Definitions" section inserted in its place. While
changes were made in other definitions, the definition of "airport prop-
P.D. 12 75
erties" in St. 1958, § 1(a) is identical with that in St. 1956, c. 465, § 1(b).
Section 23 of St. 1956, c. 465 was also struck out and a new section substi-
tuted. The previously quoted portion of the last paragraph of § 23 was,
however, transferred intact into the new § 23 as amended by St. 1958, c.
599, § 11.
The definition of airport properties in both the 1956 and 1958 acts ex-
cepted property (the Excepted Areas) ". . . now under lease to the United
States ... [or] . . . now used or controlled by the . . . commonwealth for
purposes of the air national guard." Section 23 established that the Com-
monwealth retained title to the Excepted Areas. It is my opinion that title to
these areas is still in the Commonwealth. The fact that the Excepted Areas
may have been used, subsequent to 1956, for some purpose other than ". . .
for purposes of the air national guard" has not divested the Commonwealth
of its title. The present situation is not unlike that of a conveyance. in which
a grantor excepts, for certain stated purposes, a portion of his premises, and
later changes the use of the excepted property. It is settled that the change
of use does not affect the title to the excepted portion. See Thomas v. Jew-
ell, 300 Mich. 556, 560 (1942); Mavor, etc. of New York v. New York
Central & Hudson River R.R. Co., 69 Hun. 324, 326 (N. Y. Supreme Ct.
1893), affd 147 N.Y. 710 (1895); Matter of Commissioner of Public
Works of New York, 135 App. Div. 561, 574 (N. Y. Supreme Ct. 1909),
affd 199 N.Y. 531 (1910); see Delano v. Luedinghaus, 70 Wash. 573, 576
(1912); Annotation, 139 A.L.R. 1339(1942).
The substitution of § 1(a) appearing in St. 1958, c. 599, § 1 for St. 1956,
c. 465, § 1(b) makes it necessary for me to ascertain whether the limits of
the Excepted Areas are to be determined as of the effective date of the 1 956
act or of the 1958 amendment. I again point out that the definitions of "air-
port property" in the 1956 and 1958 statutes are identical.
It is a fundamental rule of statutory construction that when statutes are
repealed by amending acts which retain portions of an old law, the retained
provisions are considered to be a continuation of the original. McAdam v.
Federal Mutual Liability Ins. Co., 288 Mass. 537, 541 (1934); Sutherland,
Statutory Construction § 1933 (3rd Ed. 1933).* Statutory terms containing
words referring to a point in time which are subsequently re-enacted as part
of an amendment speak as of the effective date of the original statute. Bar-
rows V. People's Gaslight & Coke Co., 75 Fed. 794, 795-96 (C.C.N. D. 111.
1895) ("now existing"); Allgood v. Sloss-Sheffield Steel & Iron Co., 196
Ala. 500, 501, 504 (1916) ("within two years before the approval of this
act"); Thompson v. Massburg, 193 Ind. 566, 573-575 (1923) ("pending at
the time of taking effect of this act"); Moore v. Mausert, 49 N.Y. 332, 335
(1872) ("hereafter"); State ex rel. Durr. v. Speogel, 91 Ohio St. 13, 18-22
(1914) ("hereafter"); Wisconsin Trust Co. v. Mimday, 168 Wis. 31, 45
(1918) ("before the passage of this section").
Applying these principles to the present case, it must follow that the lim-
its of the Excepted Areas are to be determined as of the effective date of St.
1956, c. 465, § 1(b). There is nothing in the purpose or content of the 1958
statute and nothing in the legislative history of either the 1956 or the 1958
statute which is inconsistent with this conclusion. See Report of the Special
Commission on the Massachusetts Port Authority, 1956 House Doc. 2575;
(containing bill submitted by the Special Commission); 1956 House Doc.
This principle has been codified for purposes of the construction of the General Laws. G. L. c. 281.
76 P.D. 12
2800 (the bill substituted by House Committee on Ways and Means); Opin-
ion of the Justices to the Senate, 334 Mass. 721 (1956); 1958 House Doc.
3203 (the bill recommended by the Governor); 1958 House Doc. 3206 (the
bill substituted by House Committee on Ways and Means).
In summary, then, it is my opinion that the Massachusetts Port Authority
does not have title to that part of Logan Airport which was under lease to
the United States of America or used or controlled by the military division
of the Commonwealth for purposes of the air national guard on the effective
date of St. 1956, c. 465. It is as of that date, not as of 1958 or as of the
present time, that the necessary factual determinations must be made.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 22. August 14, 1967.
William C. Maiers, Clerk House of Representatives
Dear Mr. Maiers: — The House of Representatives has requested my
opinion on the following questions concerning the Sales and Use Tax (St.
1966, c. 14, §§ 1 and 2) in relation to commercial fishing:
"1. Does the word 'directly' as used in paragraphs (r) and (s) of
subsection 6 of section 1 of chapter 14 of the Acts of 1966
apply to commercial fishing?
"2. Do the provisions of said paragraphs (r) and (s) prohibit the
taxation of machinery, parts, equipment, tools, and materials
commonly used in or on commercial fishing vessels and in
the business of commercial fishing?
"3. Does the determination by the state tax department that cer-
tain items commonly used in commercial fishing indicated on
the list attached hereto [not appended to this opinion] are
taxable violate the provisions of said paragraphs (r) and (s)
which exempt from taxation machinery, equipment, materi-
als, tools and fuel in so far as they are used in commercial
fishing?
"4. Does the said determination by the State Tax Commission at-
tached hereto [not appended to this opinion] regarding ex-
emptions as provided for by said paragraphs (r) and (s) as
they apply to the commercial fishing industry nullify the leg-
islative intent which was to provide an exemption for the
commercial fishing industry?"
Needless to say, this opinion is an interpretation of the law as the Legis-
lature wrote it. Considerations of economic policy are beyond my province
and are for the Legislature alone. Further, since the questions submitted to
me do not refer to paragraph (0) of Subsection 6 of Section 1 of the Sales
and Use Tax, relative to an exemption in connection with "vessels engaged
in foreign and interstate commerce," I assume that the House of Represen-
tatives does not desire me to discuss that paragraph.
P.D. 12 77
Paragraphs (r) and (s) of Subsection 6 of Section 1 of the Sales and Use
Tax exempt from taxation:
"(r) Sales of materials, tools and fuel, or any substitute there-
for, which become an ingredient or component part of tangible
personal property to be sold or which are consumed and used di-
rectly in agricultural production; in commercial fishing; in an in-
dustrial plant in the process of the manufacture of tangible per-
sonal property to be sold, including the publishing of a newspa-
per; in the operation of commercial radio broadcasting or televi-
sion transmission; in the furnishing of power to an industrial
manufacturing plant; or in the furnishing of gas, water, steam or
electricity when delivered to consumers through mains, lines or
pipes. For the purpose of this paragraph, the raising of poultry
and livestock shall be construed to be included in the term 'agri-
cultural production'. (Emphasis supplied.)
"(s) Sales of machinery, or replacement parts thereof, used di-
rectly in agricultural production; in commercial fishing; in an in-
dustrial plant in the manufacture, conversion or processing of
tangible personal property to be sold, including the publishing of
a newspaper; in the operation of commercial radio broadcasting
or television transmission; in the furnishing of power to an in-
dustrial manufacturing plant; or in the furnishing of gas, water,
steam or electricity when delivered to consumers through mains,
lines or pipes. For the purposes of this paragraph, the raising of
poultry and livestock shall be construed to be included in the
term 'agricultural production'." (Emphasis supplied.)
I am satisfied that the natural syntax and meaning of each of the forego-
ing paragraphs require that the words "used directly" should be read as in-
troducing each enumerated item. To relate "directly" only to the first item,
"agricultural production," would, for no apparent reason, treat that catego-
ry differently from each of the four succeeding categories and in so doing
would necessarily enlarge the exemptions afforded by them. Settled rules of
interpretation of tax laws, however, require that exemptions be strictly con-
strued. First Agricultural Bank of Berkshire County v. State Tax Commis-
sion, Mass. Adv. Sh. ( 1967) p. 1 301 . Accordingly, I answer your first ques-
tion in the affirmative.
I continue to the problems raised by Question 2. Paragraphs (r) and (s)
are specific in designating the classes of property that enter into the exemp-
tions. Paragraph (r) refers to "materials, tools and fuel, or any substitute
therefor. . . ." Paragraph (s) refers to "machinery, or replacement parts
thereof." Question 2, however, interjects the category of "equipment" and it
also introduces the concept of items "commonly used in or on commercial
fishing vessels and in the business of commercial fishing." These are not the
terms or concepts employed in the Sales and Use Tax legislation.
By specifying particular classes of exempt property, the Legislature has
excluded any class not enumerated. Since "equipment" was not enumerated,
it is not to be regarded as exempt unless an item of "equipment" may also
happen to fall within one of the other categories. ^ Moreover, as I have just
"Equipment" is often used interchangeably with "machinery." Assessors of Brockton v. Brockton
Olympia Rccilly Co.. 322 Mass. 351. For a definition of machinery, see Assessors of Haverhill v. J. J.
Newherry Co.. 330 Mass. 469, 472.
78 P.D. 12
observed, the statutory exemption is not tramed in terms of items "com-
monly used in or on commercial fishing vessels and in the business of com-
mercial fishing." If your question was intended to imply that the exemption
may apply to any item in common use in the commercial fishing industry as
a whole, I must state that in my opinion the implication is too broad and is
not warranted by the statute.
After careful consideration, I am of the opinion that the exemption rela-
tive to commercial fishing must rather be regarded as applying only to the
process or operation of commercial fishing as distinguished from the busi-
ness or industry generally. Not only is this result implicit in the use of the
word "fishing" itself; it is reinforced and made practically explicit in para-
graphs (r) and (s) by the introductory word "directly," which must be given
significant meaning in connection with the exemption. Further, it is consist-
ent with the rule that exemptions must be strictly construed and it makes the
nature of the commercial fishing exemption consistent with that of the other
exemptions in paragraphs (r) and (s), since each such exemption refers to a
process or operation in relation to the various items involved. Thus, refer-
ence is made to agricultural ''production"; an industrial plant in the "proc-
ess of the manufacture of tangible personal property"; the "operation" of
commercial radio broadcasting or television "transmission"; the "furnishing
of power" to an industrial manufacturing plant, and the "furnishing" of gas,
water, steam or electricity when "delivered" to consumers through mains,
lines or pipes.
Since, therefore, the exemption in respect of commercial fishing applies
only to the operations and processes thereof, it follows that whether or not
an item is "commonly used in or on commercial fishing vessels and in the
business of commercial fishing" is not conclusive. I fully recognize the diffi-
culty of the task of ascertaining when an item falls outside the exemption,
such as when a piece of "equipment" cannot be regarded as an item of "ma-
terials," "tools" or "machinery," or when a use is indirect as distinguished
from direct (as in the case of an item not used directly in the operation or
process of commercial fishing, though perhaps commonly used in or on
commercial fishing vessels or in the business of commercial fishing). None-
theless, I conclude that the Legislature has defined the exemption in the
manner that 1 have indicated, and I am unable to suggest any more precise
guidelines, given the statutory language in question.
Your third and fourth questions, in effect, ask whether the State Tax
Commission has correctly applied paragraphs (r) and (s) to a list of twenty-
seven main items and numerous subitems. This involves a determination of
fact as to the nature and function of each of the items listed, a determination
which under the statute the Legislature has vested initially in the State Tax
Commission. These facts are not before me, and I am unable to give you an
answer as to each. I trust, however, that my answers to your first two ques-
tions will provide some assistance to those charged with making the neces-
sary factual determinations.
Very truly yours,
Elliot L. Richardson, Attorney General
P.D. 12 79
Number 23. August 15, 1967.
Honorable Mabel A. Campbell, Acting Director of Civil Service
Dear Mrs. Campbell: — Your predecessor, the late W. Henry Finnegan,
requested my opinion on whether the Director of Civil Service may approve
the transfer of a police sergeant from one town to another town, the position
in each case being the same and classified under the Civil Service Laws.
Specifically, Mr. Finnegan stated that:
"In view of the provisions of section 20 of chapter 3 1 of the
General Laws, I am requesting your opinion as to whether or not
you believe it is within the discretion of the Director of Civil
Service to approve a transfer under section 1 6A of chapter 3 1 of
a Police Sergeant who has served at least one year after perma-
nent appointment to the position of Police Sergeant in another
town, if the appointing authority submits sound and sufficient
reasons to show that the transfer will be for the public good."
General Laws c. 3 1 , § 1 6A, in relevant part, provides:
"Except as otherwise provided by law, any person who has been
permanently appointed in accordance with the civil service law
and rules, and who has actually been employed after permanent
appointment for at least one year in the official or labor service,
may, after application in writing to the director by the appointing
authority and with the consent of the director, be transferred to
another similar position, provided the appointing authority sub-
mits sound and sufficient reasons, in the opinion of the director,
to show that the transfer will be for the public good."
The provision of G. L. c. 31, § 20, to which reference was also made,
provides:
"Appointments and promotions in such police and fire forces of
cities and towns as are within the official service . . . shall be
made only by competitive examination, except as otherwise pro-
vided in this chapter, or in the rules of the commission relative to
temporary or emergency appointments. . . ." (Emphasis sup-
plied.)
In substance, the question is whether or not a "transfer" is either an "ap-
pointment" or "promotion." The term "appointment" in G. L. c. 31, § 1 "is
used to denote only the original entry into the classified civil service." Mc-
Carthy V. Director of Civil Service, 319 Mass. 124, 126. "Promotion" is de-
fined in G. L. c. 3 1 , § 1 as "a change from the duties of one grade to the
duties of a higher grade in the same or a different class as determined by the
director." The word "transfer" is not defined in the statute but it is nev-
ertheless used as a term distinct from "appointment" and "promotion." It
refers to a change of a position, after original entry into the classified civil
service, not involving the performance of duties of a higher grade.
Accordingly, I am of the opinion that G. L. c. 3 1 , § 20 does not limit the
authority of the Director to consent to a transfer under G. L. c. 3 1, § 16A
in the circumstances described. By § 1 6A, however, the appointing authori-
ty must submit "sound and sufficient reasons, in the opinion of the director,
to show that the transfer will be for the public good."
80 P.D. 12
Mr. Finnegan's letter stated that:
"In the town in which the officials are requesting the transfer
there are five permanent full-time Patrolmen and five perma-
nent-intermittent Patrolmen who would be eligible for a competi-
tive promotional examination."
I assume that the promotion referred to would be to the position of police
sergeant. This is a consideration that should be taken into account in deter-
mining whether the proposed transfer would be "for the public good," and
is a factual matter, which in the first instance, is to be decided by you.
Very truly yours.
Levin H. Campbell, Acting Attorney General
Number 24. August 16, 1967.
His Excellency John A. Volpe, Governor of the Commonwealth
Dear Governor Volpe: — You have requested the opinion of the At-
torney General regarding the utilization of gas tax receipts for the purpose of
financing the construction, maintenance, and operation of a proposed mul-
ti-purpose stadium to serve as a cultural, recreational and convention cen-
ter.
The funds to be used would arise as a result of the failure of persons to
make claim for refund of excise taxes paid on gasoline consumed on the
Massachusetts Turnpike pursuant to G. L. c. 64A, § 7. That section pro-
vides in part that:
"Any person who shall buy any fuel on which an excise has been
paid or is chargeable under this chapter, and shall consume the
same in any manner except on a farm for farming purposes or in
the operation of motor vehicles upon or over highways, whether
or not such vehicles are registered under the provisions of section
five of chapter ninety, shall be reimbursed the amount of said ex-
cise in the manner and subject to the conditions hereinafter set
forth: provided, however, that any turnpike constructed by the
Massachusetts Turnpike Authority in accordance with chapter
three hundred and fifty-four of the acts of nineteen hundred and
fifty-two, as amended, shall not be considered a highway for the
purposes of this chapter until such turnpike shall have become a
part of the state highway system as provided in section seventeen
of said chapter three hundred and fifty-four. > ... All claims for
reimbursement shall be filed with the commissioner within two
years from the date of purchase or invoice of fuel; . . ."
The funds unclaimed after two years are presently disposed of pursuant
to G. L. 64A, § 13, which provides as follows:
"All sums received under this chapter shall be paid into the treas-
ury of the commonwealth and credited as follows: —
(a) Ninety-eight and four-fifths per cent of the excise imposed
Chapter 354 of the Acts of 1952, ij 17 provides that the turnpike will become part of the state highway
system when all the Authority's bonds have been paid.
P.D. 12 81
by section four and all sums received as penalties forfeitures, in-
terest, costs of suits and fines shall be credited to the Highway
Fund;2 provided that there shall be deducted therefrom all
amounts allowed by the commissioner for reimbursement under
sections seven and seven A, except as provided in clause (b);
(b) Whereas not less than one and one-fifth percent of the ex-
cise imposed by said section four, hereinafter called the balance,
is obtained from the sale or importation of fuel used in producing
or generating power for the operation of watercraft of every de-
scription, except seaplanes, said balance, after deducting all reim-
bursements allowed to persons who have used such fuel in pro-
ducing or generating power in the operation of such watercraft,
shall be credited as follows: — one-sixth to the inland fisheries
and game fund established by section three A of chapter one
hundred and thirty; two-sixths to the public access fund estab-
lished by section seventeen of chapter twenty -one; two-sixths to
the marine fisheries fund established by section two A of chapter
one hundred and thirty; and one-sixth to the Recreational Boat-
ing Fund established under section sixteen of Chapter ninety B."
You have attached to your request proposed legislation which would per-
mit the construction, maintenance and operation of a multi-purpose stadium
by the Massachusetts Turnpike Authority. The proposed legislation would
further amend G. L. c. 64A by providing that unclaimed gas excise tax
monies attributable to travel on the Turnpike will be transferred to the Mas-
sachusetts Turnpike Authority for construction, maintenance and operation
of the stadium.
Article 78 of the Amendments to the Massachusetts Constitution pro-
vides as follows:
"No revenue from fees, duties, excises or license taxes relating
to registration, operation or use of vehicles on public highways,
or to fuels used for propelling such vehicles, shall be expended
for other than cost of administration of laws- providing for such
revenue, making of refunds and adjustments in relation thereto,
payment of highway obligations, or cost of construction, recon-
struction, maintenance and repair of public highways and bridges
and of the enforcement of state traffic laws; and such revenue
shall be expended by the commonwealth or its counties, cities and
towns for said highway purposes only and in such manner as the
general court may direct; provided, that this amendment shall not
apply to revenue from any excise tax imposed in lieu of local
property taxes for the privilege of registering such vehicles."
(Emphasis supplied.)
In view of the restriction of Article 78 allowing the expenditure of such
revenue for only highway purposes, you have asked the following questions:
"1. Is the Massachusetts Turnpike a 'public highway' within the
meaning of Article 78 of the Amendments to the Massachu-
setts Constitution?
''2. Would the use of unrefunded gasoline tax monies as provided
The Highway Fund herein referred to is created by G. L. c. 90, S 34. This section also sets forth cer-
tain authorized expenditures that can be made from the Highway Fund.
82 P.D. 12
the attached legislation constitute a violation of the letter
and/or intent of Article 78?"
Our Supreme Judicial Court has indicated that the term "public high-
way" used in Article 78 must be given a meaning consistent with common
understanding, since only in this way can the voters to whom a constitution-
al amendment is presented act intelligently. Opinion of the Justices, 324
Mass. 746. Applying this test, it is my opinion that the Massachusetts Turn-
pike is a public highway.
Such an interpretation conforms with early Massachusetts cases which
have indicated that a turnpike is a "public highway." Commonwealth v.
Wilkinson, 16 Pick. 175, 177; Newbury port Turnpike Corporation v. East-
ern R.R. Co., 23 Pick. 326, 327; George G. Fox Co. v. Boston and North-
ern Street Railway, 217 Mass. 140, 142; Opinion of the Justices, 250 Mass.
591,596.
In Commonwealth v. Wilkinson, supra. 111, Chief Justice Shaw stated:
"We think, that a turnpike road is a public highway, estab-
lished by public authority for public use, and is to be regarded as
a public easement, and not as private property. The only differ-
ence between this and a common highway is that instead of being
made at the public expense in the first instance, it is authorized
and laid out by public authority, and made at the expense of indi-
viduals in the first instance; and the cost of construction and
maintenance is reimbursed by a toll, levied by public authority
for the purpose. Every traveller has the same right to use it, pay-
ing the toll established by law, as he would have to use any other
public highway."
It has been suggested that the Massachusetts Turnpike is not a "public
highway" on the basis of the gas tax refund statute which is previously set
forth herein and which provides in part that "any turnpike constructed by
the Massachusetts Turnpike Authority . . . shall not be considered a high-
way for the purposes of this chapter until such Turnpike shall have become
a part of the state highway system. . . ." G. L. c. 64A, § 7. However, this
statutory provision cannot supersede the constitutional meaning of the term
"public highway" as used in the 78th Amendment. Furthermore, this provi-
sion is specifically limited "for the purpose of this chapter," and implicit in
the making of this exception is recognition by the Legislature that the Turn-
pike would otherwise be considered a highway. Indeed, the Legislature de-
fines the Massachusetts Turnpike as the ". . . express toll highway ... as
may be constructed under the provisions of this act. . . ." St. 1952, c. 354, §
4(b).
It is therefore my opinion that the Massachusetts Turnpike is a "public
highway" within the meaning of Article 78 of the Amendments to the Mas-
sachusetts Constitution and I accordingly answer your first question in the
affirmative. It follows that the proposed legislation providing for the use of
such unrefunded gas tax revenues for financing the construction, mainte-
nance and operation of a multi-purpose stadium would constitute a viola-
tion of Article 78. The receipts arising from the failure of persons to make
claim for refund of excise taxes paid on gasoline consumed on the Massa-
chusetts Turnpike are "revenue from . . . excises . . . relating to . . . opera-
tion or use of vehicles on public highways or to fuels used for propelling
P.D. 12 83
such vehicles . . .," and under Article 78 revenue of this nature may only be
used for specified purposes none of which would include the financing of a
stadium. I must therefore answer your second question in the affirmative.
Very truly yours,
Levin H. Campbell, Acting Attorney General
Number 25. September 8, 1967.
Honorable Robert A. MacLellan, Commissioner of Savings Bank Life
Insurance and President of the Trustees of the General Insurance Guaranty
Fund
Dear Commissioner MacLellan: — You have requested my opinion on
certain questions concerning the supervisory authority of the Trustees of the
General Insurance Guaranty Fund (Trustees) over the State Actuary.
You state that:
"It is the position of the Trustees of the General Insurance Guar-
anty Fund, which is the governing body of the Division of Savings
Bank Life Insurance, that the Trustees, not the State Actuary who
is appointed by the Trustees with the consent of the Governor,
have the power and authority to make Division policy decisions,
including decisions which may be contrary to those made by the
State Actuary. It is also the Trustees' position that the supervision
and control of the work of the Division, including the work of the
State Actuary, is vested in the Trustees. It is, further, the position
of the Trustees that the job specifications of the Division of Per-
sonnel and Standardization relating to the State Actuary are cor-
rect and consistent with the applicable statutes.
You then ask the following questions:
"1. Do the Trustees of the General Insurance Guaranty Fund
have the power and authority to make policy decisions which
may be contrary to those made by the State Actuary?
As specific examples:
(a) If the State Actuary prepares a new table of premium
rates under Section 15 of Chapter 178, for all kinds of
life insurance policies to be adopted as the uniform and
exclusive premiums for all savings and insurance banks
which reduces the premium rates by 90% , or by such an
amount which the Trustees deem to be unsound, do the
Trustees of the General Insurance Guaranty Fund, or
the Deputy Commissioner acting on the instructions of
the Trustees, have the power and authority to disap-
prove the lower rates? If not, what action may the Trus-
tees take?
(b) If the State Actuary, under Section 15, determines new
formulae for large dividends (the net profits to be dis-
tributed to the holders of policies) which the Trustees
conclude is not justified, do the Trustees, or the Deputy
Commissioner acting on instructions of the Trustees,
84 P.D. 12
have the power and authority, by disapproval, to prevent
the payment of dividends under such formulae? If not,
what action can the Trustees take?
(c) If in any year a savings and insurance bank requests, as
provided in Section 2 1 , that it be permitted to add to its
surplus an amount in excess of 15% of its net profits,
but the State Actuary refuses to approve this request for
a reason which the Trustees conclude is not satisfactory,
or for no reason at all, do the Trustees, or the Deputy
Commissioner acting on the instructions of the Trustees,
have the power and authority to overrule the State Ac-
tuary and approve the request? If not, what action can
the Trustees take?
(d) If in any year the Directors of the Savings Bank Life In-
surance Council make an apportionment of the Council's
expenses, as provided under section 32, which is satis-
factory to the Trustees as fair and equitable to the parti-
cipating banks, and the State Actuary refuses to approve
the apportionment for a reason which is unsatisfactory
to the Trustees, or for no reason at all, do the Trustees,
or the Deputy Commissioner acting on instructions of
the Trustees, have the power and authority to overrule
the State Actuary and approve the apportionment of the
expenses of the Council as proposed by the Directors? If
not, what action can the Trustees take?
"2. Is work performed by the State Actuary, work of the Divi-
sion of Savings Bank Life Insurance, and therefore, under
the supervision and control of the Trustees?
"3. Is the statement of job specifications for the State Actuary, on
file at the Division of Personnel and Standardization, consist-
ent with the applicable statutes?"
In order to answer these questions it is necessary to examine the back-
ground and existing statutory framework of Massachusetts savings bank life
insurance.
The purpose behind the enactment of St. 1907, c. 561, the original sav-
ings bank life insurance law, was to provide persons of low income with in-
expensive life insurance. The concept originated in studies of the life insur-
ance industry made by Louis D. Brandeis between 1905 and 1907. See Opin-
ion of the Justices, 345 Mass. 780, 782 (1963); Brandeis, Business -
a Profession, pp. 109-197 (1914); Mason, The Brandeis Way (1938);
Mason, Brandeis a Free Man's Life, pp. 157, et seq. (1946).
The Division of Savings Bank Life Insurance (the Division) is one of the
three divisions within the Department of Banking and Insurance. The Divi-
sion is ". . . in charge of a commissioner . . ." who is known as the Commis-
sioner of Savings Bank Life Insurance (the Commissioner). G. L. c. 26, § 1.
The Division consists ". . . of the body corporate known as the General In-
surance Guaranty Fund . . ." (the Fund). G. L. c. 26, v} 9. The Fund was
incorporated by St. 1907, c. 561, § 14. It is managed by a board of seven
trustees selected by the Governor from persons who are trustees of savings
banks. G.L.c. 26, § 10.
P.D. 12 85
The Trustees ". . . have general supervision and control of the work of
the body corporate." G. L. c. 178, § 14. The Commissioner acts as presi-
dent of the board of trustees of the Fund. G. L. c. 26, § 9.
A Deputy Commissioner is appointed by the Trustees subject to confir-
mation by the Governor. The Deputy Commissioner ". . . shall administer
the work of the division under the direction and control of the trustees. ..."
G. L. c. 26, § 10.
The Trustees, with the approval of the Governor, appoint and may re-
move ". . . an insurance actuary . . . called the state actuary." The State Ac-
tuary serves within the Division. G. L. c. 26, § 11; G. L. c. 178, § 4. The
Trustees also appoint a physician called the State Medical Director (G. L. c.
26, § 1 2) who acts as supervising physician and prescribes rules for health
acceptability of applicants for insurance. G. L. c. 178, § 16.
Pursuant to G. L. c. 178, § 2, any savings bank may establish an insur-
ance department. In order to do so, the bank must obtain the approval of
the Commissioner of Banks (G. L. c. 178, § 2), and must establish certain
guaranty funds or contracts (G. L. c. 178, § 3). After obtaining a license
under G. L. c. 178, § 7, the bank may make and issue life policies and an-
nuities subject to the conditions set forth in G. L. c. 1 78, § 6. A bank which
has established an insurance department is known as a "savings and insur-
ance bank." G. L. c. 1 78, § 1 .
The duties of the State Actuary are set forth in detail in § 1 5 of G. L. c.
178. Thus, the State Actuary, with the advice of the Attorney General as to
matters of legal form, is to prepare the standard and exclusive forms of poli-
cies used by savings and insurance banks. He is to prepare standard appli-
cation blanks, record books and other forms used by savings and insurance
banks. He prepares the standard and exclusive table of premium rates for
all savings bank life insurance policies, the purchase rates for annuities, the
premium rates for reinsurance, and other rates and charges for services ren-
dered by the insurance departments of savings and insurance banks. He de-
termines and prepares tables showing the amounts which may be loaned on
savings bank insurance policies and the guaranty charges to be made by the
Fund. He determines legal reserves to be held by the banks under insurance
and annuity contracts, and in all other respects performs the duties of insur-
ance actuary for the banks and the Fund. Each year the State Actuary
makes a valuation of the policies of the banks and of the condition of the
Fund. He determines the ratio of actual to expected mortality claims for all
of the savings and insurance banks. G. L. c. 178, § 15. Under certain cir-
cumstances the State Actuary is also to determine the amount of the net
profits of its insurance department which a savings and insurance bank may
add to its surplus, and the amount which must be distributed to its policy-
holders as dividends. G. L. c. 178, § 21. He must approve the original
amounts of insurance and expense guaranty funds of savings and insurance
banks (G. L. c. 178, §§4 and 5) and the allocation among savings and in-
surance banks of the expenses of the Savings Bank Life Insurance Council,
established by G. L. c. 178, § 32.
The supervisory power of the trustees over the Division is set forth in
several parts of the General Laws. Chapter 26, § 10 provides that the ". . .
deputy commissioner . . . shall administer the work of the division under the
direction and control of the trustees." (Emphasis supplied.) Section 9 states
that the Division shall consist "... of the body corporate known as the Gen-
86 P.D. 12
eral Insurance Guaranty Fund," and G. L. c. 178, § 14 states that the ". . .
trustees . . . shall have general supervision and control over the body corpo-
rate." (Emphasis supplied.) General Laws c. 26, § 1 1 and G. L. c. 178, § 4
establish that the State Actuary serves within the Division.
When used to describe the relationship existing between public bodies
and officers ''. . . the words 'supervision and control' comprehend an exer-
cise of restraint or direction, of authority over, of domination and com-
mand." Fluet V. McCahe, 299 Mass. 173, 179 (1938). It follows that in the
absence of some clear statutory mandate to the contrary, the State Actuary,
who serves in the Division may, like all personnel thereof, be restrained and
directed by the Trustees in the performance of his duties. I can find nowhere
in the governing statutes or in the legislative history of savings bank insur-
ance any indication that the State Actuary is to be free from the control of
the Trustees. See 1907 Senate Doc. No. 1, pp. 14-15 (Address of the Gov-
ernor); 1907 House Doc. No. 1457 (Bill submitted by Committee on Insur-
ance); 1907 House Doc. No. 1085, pp. 54-57 (Report of Joint Special
Committee on Insurance); 1939 House Doc. No. 2124, infra. Neither is
there any such indication in Brandeis' writings on savings bank life insur-
ance. See papers collected in Brandeis, Business - a Profession, pp. 109-197
(1914); Brandeis, The Curse of Bigness, pp. 3-30 (1934).
Reference to the history of the savings bank life insurance law indicates
that the purpose of the exhaustive statutory description of the duties of the
State Actuary was to make clear that actuarial services are to be provided
by the state agency rather than by the savings and insurance banks them-
selves. See Brandeis, Savings Bank Insurance (1906), reprinted in Brandeis,
Business - a Profession, pp. 154, 173-74 (1914); Brandeis, Massachusetts'
Substitute for Old-Age Pensions (1908), reprinted in Brandeis, The Curse
of Bigness, pp. 25, 28-29 (1934). In my opinion, therefore, the specificity
with which various duties are assigned to the State Actuary is not to be in-
terpreted as indicating that these duties may be performed free from the su-
pervision and control by the Trustees. To the contrary, I believe that in
carrying out all of his specified duties, the Actuary remains subject to the
authority of the Trustees.
General Laws c. 178, § 16, which sets forth the duties of the State Medi-
cal Director states that he ". . . shall be subject to the supervision and con-
trol of the trustees of the General Insurance Guaranty Fund. . . ." In my
opinion, the absence of such a clause in G. L. c. 1 78, § 15 (setting forth the
powers of the State Actuary) does not imply that the State Actuary is not to
be subject to such supervision and control. Prior to St. 1 947, c. 260, § 4, the
Medical Director was expressly made ". . . subject to the supervision and
control of the commissioner of insurance. . . ." The apparent purpose of the
1 947 statute was merely to remove that exception to the general supervisory
power of the trustees, by transferring this power over the Medical Director
from the Commissioner of Insurance to the Trustees. G. L. c. 1 78, vj 1 6; St.
1947, c. 260, §4.
The conclusion that the State Actuary is subject to direction and restraint
by the Trustees is supported by the 1939 Report of the Special Commission
Relative to the Amount of Insurance to be Issued upon any One Life by
Savings and Insurance Banks. 1939 House Doc. No. 2124. There the Com-
mission, in commenting on the duties of the State Actuary, stated that ". . .
the Commission is of the opinion that . . . [the State Actuary] should be
under the direct supervision of the Division, and in order to maintain a su-
P.D. 12 87
pervisory relationship between the Commonwealth and the issuing banks,
his present status should not be disturbed." p. 1 7.
Relating this analysis to the questions asked in your letter of June 1 9,
1 967, my views are as follows:
1 . As the body charged with the responsibility of managing the
Division of Savings Bank Life Insurance, the trustees of the
General Insurance Guaranty Fund have the power and au-
thority to make policy decisions which may be contrary to
those made by the State Actuary. In each of the specific ex-
amples presented in your question the Trustees and the Dep-
uty Commissioner have the power and authority to overrule
the State Actuary.
2. The work performed by the State Actuary is a part of the
work of the Division of Savings Bank Life Insurance and it is
therefore under the supervision and control of the Trustees
of the General Insurance Guaranty Fund.
3. You have enclosed a copy of the statement of job specifica-
tions for the State Actuary, the original of which is on file
with the Division of Personnel and Standardization. This
statement is consistent with applicable statutes with the ex-
ception of the following paragraph:
"Supervision Received: Works under the general
direction of Deputy Commissioner of Savings Bank
Life Insurance who reviews work for compliance with
provisions of the General Insurance Guaranty Fund."
This paragraph should state that the Deputy Commis-
sioner ". . . reviews work for compliance with the poli-
cies of the trustees of the General Insurance Guaranty
Fund."
Very truly yours,
Elliot L. Richardson, Attorney General
Number 26. September 8, 1967.
Honorable Alfred L. Frechette, M. D., Commissioner of Public Health
Dear Commissioner Frechette: — You have asked me to answer the
following question:
"Will you kindly advise me whether or not, in your opinion,
Chapter 7 1 3 of the Acts of 1966 delegated to the hearings officer
the decision-making power with reference to the licensing of con-
valescent or nursing homes, rest homes or charitable homes for
the aged."
Chapter 7 1 3 of the Acts of 1 966 is entitled:
"An Act Providing For The Appointment Of A Hearings Officer
In The Department Of Public Health To Hear Certain Matters
Relating To Convalescent Or Nursing Homes, Rest Homes Or
Charitable Homes For The Aged, And For Other Purposes."
P.D. 12
It provides in pertinent part as follows:
"SECTION 1. Chapter 17 of the General Laws is hereby
amended by inserting after section 6A the following section: —
"Section 6B. The commissioner shall appoint a hearings officer
who shall be an attorney and who shall not be subject to chapter
thirty-one. He shall hold hearings as provided in chapter one
hundred and eleven.
"SECTION 2. Section 3 of chapter 1 1 1 of General Laws, as
amended by chapter 152 of the acts of 1946, is hereby further
amended by striking out the last sentence and inserting in place
thereof the following sentence: — Hearings of the department
may be held by the commissioner, or his designee or the hearings
officer if so authorized by the commissioner, or by the hearings
officer as provided in section seventy-one with respect to a refusal
to renew or revocation of a license of a convalescent or nursing
home, rest home or charitable home for the aged.
"SECTION 3. Section 71 of said chapter 11 1 is hereby amend-
ed by striking out the first sentence, as appearing in section 1 of
chapter 6 1 4 of the acts of 1 966, and inserting in place thereof the
following sentence: — The department shall issue for a term of
two years, and may renew for a like term, a license, subject to re-
vocation by it for cause, to any person whom it deems responsible
and suitable to establish or maintain a hospital, sanatorium, infir-
mary maintained in a town, convalescent or nursing home, rest
home or charitable home for the aged which meets the require-
ments of the department established in accordance with its rules
and regulations, provided, however, that each convalescent or
nursing home shall be inspected at least once in each year.
"SECTION 4. Said section 71 of said chapter 1 I 1 is hereby
further amended by striking out the eleventh sentence, as so ap-
pearing, and inserting in place thereof the following sentence: —
Upon a written request by an applicant who is aggrieved by the
refusal to renew such a license, or by a holder who is aggrieved
by the revocation of such a license, as the case may be, the com-
missioner and the council shall hold a public hearing after due
notice and thereafter may modify, affirm or reverse the action of
the department, provided, however, that the department may not
refuse to renew, or revoke, the license of a convalescent or nurs-
ing home, rest home or charitable home for the aged, until after a
hearing before a hearings officer, and any such applicant or per-
son so aggrieved shall have all the rights provided in chapter thir-
ty A with respect to adjudicatory proceedings." (Emphasis sup-
plied.)
The term "department" is defined in G. L. c. 17, § I as follows: "There
shall be a department of public health, consisting of a commissioner of
public health and a public health council." Section 3 of St. 1966, c. 713,
quoted above, states that licenses are to be issued or renewed by "the de-
partment" and makes no reference to a hearings officer. Hence there is no
express delegation of decision-making power to him. Nor does the fact that
he is authorized by §§ 1 and 2 to hold hearings imply a delegation of that
P.D. 12 89
power to him. See G. L. c. 30A, § 1 1(7); Cooper, State Administrative
Law, pp. 331-338 (1965); 1 Annual Survey of Massachusetts Law, pp.
139-140(1954).
The language of § 4 of St. 1 966, c. 7 1 3 is somewhat confusing but it does
not, in my opinion, either expressly or impliedly delegate decision-making
power to a hearings officer. In my view, it must be read as providing for (1)
an initial department decision after (and based upon) a hearing before a
hearings officer, and (2) an opportunity for a party aggrieved by the initial
department decision to obtain a second hearing, this time before the depart-
ment itself (i.e., the Commissioner and council), which may thereupon mod-
ify, affirm or reverse its own prior decision.
In summary, then, I answer your question in the negative.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 27. September 8, 1967.
Honorable Cleo F. Jaillet, Commissioner of Corporations and Taxation
Dear Commissioner Jaillet: — Yourpredecessor, Commissioner Guy J.
Rizzotto, asked my opinion on whether a "mobile home" is a "trailer" with-
in the meaning of § 1 , subsection 26 of c. 14 of the Acts of 1 966, the Sales
and Use Tax Law (the Sales Tax) and thus eligible for a trade-in deduction
under that subsection upon the sale of another vehicle. For the reasons set
forth below I am of the opinion that if a "mobile home" meets the definition
of a "trailer" in G. L. c. 90, § 1 (the Motor Vehicle Law) it qualifies for the
trade-in deduction under the Sales Tax.
Section 1 , subsection 26 of the Sales Tax provides in part:
"Where a trade-in of a motor vehicle, trailer or farm tractor is re-
ceived by a dealer in such vehicles holding a valid vendor's regis-
tration, upon the sale of another motor vehicle, trailer or farm
tractor to a consumer, or user, the tax shall be imposed only on
the difference between the sale price of the motor vehicle, trailer
or farm tractor purchased and the amount allowed on the motor
vehicle, trailer or farm tractor traded in on such purchase. When
any such motor vehicle, trailer or farm tractor traded in is subse-
quently sold to a consumer or user, the tax provided for in this
section shall apply. For the purpose of this subsection the term
'farm tractor' means any self-propelled vehicle designed and used
primarily as a farm implement drawing plows, moving machines
and other farm equipment."
Although the Sales Tax does not explicitly define the term "trailer," it re-
fers to the definition of "trailer" found in G. L. c. 90, § 1 (quoted below).
Section 1 , subsection 25 of the Sales Tax states in relevant part:
"For the purposes of this section every transfer of the registration
of a motor vehicle or trailer, as defined in section one of chapter
ninety of the General Laws, shall be presumed to be a sale at re-
tail." (Emphasis supplied.)
90 P.D. 12
The cited definition in G. L. c. 90, § 1 reads as follows:
" Trailer', any vehicle or object on wheels and having no motive
power of its own but which is drawn by, or used in combination
with, a motor vehicle. It shall not include a pole dolly or dickey,
so called, nor a pair of wheels commonly used as an implement
for other purposes than transportation, nor farm machinery or
implements when used in connection with the operation of a farm
or estate."
In effect, the determination of whether a vehicle is a "trailer" for purpos-
es of the Sales Tax legislation is made by applying the definition contained
in G. L. c. 90, § 1 . Actual registration as such under G. L. c. 90 is not a
necessary requirement although I would suppose that in most instances the
vehicle would be registered.
Turning now to the definition of "trailer" in G. L. c. 90 § 1, quoted
above, I find that the inclusiveness of the definition is limited only by the
exceptions specifically enumerated therein. I find no basis for implying any
others. In particular, I find nothing in that definition which excludes vehi-
cles simply because they may be called "mobile homes." In instances where
that term has been referred to in decided cases, it has been mentioned mere-
ly as a species of trailer. Thus in Manley v. Draper, 254 N.Y.S.2d 739, 44
Misc. 2d 613 (1963), the Court observed, "The word 'trailer' . . . includes a
wide variety of mobile vehicles from U-Hauls, farm and freight trailers to
camp, vacation, business office and mobile home trailers." And in Citv of
Rutland V. Keiffer, 124 Vt. 357, 205 A.2d 400 (1964), it was said,
"The words 'mobile home' are of more recent origin [than trail-
er] undoubtedly because it [sic] has more sales appeal in the
trade. Further, it is common knowledge that a great improvement
has been made in the construction of, and equipment and facili-
ties in, mobile house trailers. But a mobile home is nothing more
or less than [an] automobile house trailer. Both are designed and
built as a movable family dwelling. . . ."
124Vt. at p. 361-362.
I recognize, however, that while in some circumstances a "mobile home"
may be only a species of trailer, it may in other circumstances be in the na-
ture of a fixed residence. Since the term does not have a precise definition
and may at times be only a manufacturer's label, the answer to whether a
particular unit is or is not a "trailer" may sometimes depend on a detailed
examination of its design, function and use. In the first instance, this is a
matter to be determined by the State Tax Commission as the agency
charged with the administration of the Sales Tax Law. As stated in Cleary
V. Cardullo\s Inc., 347 Mass. 337, 344,
"The duty of statutory interpretation is for the courts. Nev-
ertheless, particularly under an ambiguous statute . . ., the details
of legislative policy, not spelt out in the statute, may appropriate-
ly be determined, at least in the first instance, by an agency
charged with administration of the statute."
I note that former Commissioner Rizzotto, in his request for an opinion,
set forth the standard the department has followed, stating:
"The position of the Department has been that a trailer entitled to
P.D. 12 91
said deduction [Subsection 26, Section I, Chapter 14, Acts of
1966] must be one which is customarily and ordinarily used upon
the highways. A mobile home, however, although having the abil-
ity to be moved from place to place, is ordinarily and customarily
used in a permanent location, with infrequent, if any, changes in
location."
This statement seems to be a reasonable administrative interpretation of
G. L. c. 90, § 1 in the first instance.
Of course, the foregoing standard concerns only a particular type of "mo-
bile home," i.e., one having the ability to be moved from place to place, but
ordinarily and customarily used in a permanent location, with infrequent, if
any changes in location. Since the term "mobile home" is imprecise and
may be no more than a manufacturer's label, not every article sold under
that name will necessarily meet the Department's test. It is the true charac-
ter, not the name of an article, that is decisive. Thus if an article which may
be called a "mobile home" is in fact a trailer, it is eligible for the deduction.
I note also that Commissioner Rizzotto, in his request for an opinion, re-
ferred to the definition of a "mobile home" in G. L. c. 140, § 32L, and he
has asked whether a "mobile home" as therein defined is a "trailer" within
the meaning of § 1, subsection 26 of the Sales Tax. The definition in G. L.
c. 140, § 32L, is as follows:
"As used in sections thirty-two A to thirty-two K [relating to the
licensing of recreational camps, overnight camps or cabins, mo-
tels and mobile home parks], inclusive, the words 'mobile home'
shall mean a dwelling unit built on a chassis and containing com-
plete electrical, plumbing and sanitary facilities, and designed to
be installed on a temporary or permanent foundation for perma-
nent living quarters."
By its very terms the foregoing definition is limited to the provisions of law
governing the licensing of the particular places indicated and neither ex-
tends to nor is adopted by the Sales Tax. For purposes of the Sales Tax the
definition would appear to be irrelevant, and I therefore find it unnecessary
to consider the extent to which it differs from the definition of trailer that
the Sales Tax has incorporated from G. L. c. 90. Nor do 1 find it necessary
to consider the specific use of the terms "mobile home" or "trailer" in zon-
ing by-laws. See Manchester v. Phillips, 343 Mass. 591, and Brewster v.
Sherman, 343 IVlass. 598.
In summary, then, if a vehicle is registrable (whether or not in fact regis-
tered) as a trailer within the meaning of G. L. c. 90, § 1 , it is eligible for the
trade-in deduction under § 1 , subsection 26 of the Sales Tax. The determi-
nation of registrability is, in the first instance, in the administration of the
Sales Tax, to be made by your Department, which may properly use the test
set forth in Commissioner Rizzotto's letter, quoted above.
Very truly yours,
Elliot L. Richardson, Attorney General
92 P.D. 12
Number 28. September 12, 1967.
Honorable Owen B. Kiernan, Commissioner of Education
Dear Commissioner Kiernan: — You have requested my opinion on
whether G. L. c. 39, §§ 23A-23C, the Open Meeting Law, applies to collec-
tive bargaining sessions between school committees and school employees.
In my opinion it does not.
Collective bargaining with municipal employees is governed by G. L. c.
149, §§ 178G-178N, inserted by St. 1965, c. 763. Section 1781 provides:
"The municipal employer and the employee organization rec-
ognized or designated as exclusive representative of employees
in an appropriate unit shall have the duty to bargain collectively.
In such bargaining other than with an employee organization for
school employees, the municipal employer shall be represented
by the chief executive officer, whether elected or appointed, or his
designated representative or representatives. In such bargaining
with an employee organization for school employees, the munici-
pal employer shall be represented by the school committee or its
designated representative or representatives.
"For the purposes of collective bargaining, the representative
of the municipal employer and the representatives of the employ-
ees shall meet at reasonable times, including meetings appropri-
ately related to the budget making process, and shall confer in
good faith with respect to wages, hours and other conditions of
employment, or the negotiation of an agreement, or any question
arising thereunder, and shall execute a written contract incorpo-
rating any agreement reached, but neither party shall be com-
pelled to agree to a proposal or to make a concession. In the
event that any part or provision of any such agreement is in con-
flict with any law, ordinance or by-law, such law, ordinance or
by-law shall prevail so long as such conflict remains. If funds are
necessary to implement such written agreement, a request for the
necessary appropriation shall be submitted to the legislative body.
If such request is rejected, the matter shall be returned to the par-
ties for further bargaining. The preceding two sentences shall not
apply to agreements reached by school committees in cities and
towns in which the provisions of section thirty-four of chapter
seventy-one are operative."
The Open Meeting Law, G. L. c. 39, § 23A, as applicable to municipali-
ties, provides in part:
"As used in this section and in section twenty-three B, the
word 'board' shall include every board, commission, committee
and sub-committee, however elected, appointed or otherwise con-
stituted, of any district, city or town. It shall also include the gov-
erning board of every local housing, redevelopment or similar au-
thority. All board meetings shall be open to the public and to the
press unless the board shall vote to go into executive session.
Such executive session may be held only for the purpose of dis-
cussing, deliberating or voting on those matters which by general
or special statute, or federal grant-in-aid requirements cannot be
made public, and those matters which if made public might ad-
P.D. 12 93
versely affect the public security, the financial interest of the dis-
trict, city, town or local housing authority, or the reputation of
any person. . . ." (Emphasis supplied.)
After careful consideration, I have concluded that this statute does not
apply to collective bargaining sessions with school employees. The decisive
point is that such sessions are not "meetings" within the meaning of that
term in thd" statute. The meetings to which the statute refers are rather those
in which the internal discussions, deliberations and voting of an agency are
of public concern. A collective bargaining session, on the other hand, is a
meeting at which the employer and employees are engaged in a process of
an interchange and analysis of each other's proposals and counterproposals.
This is a different kind of process from that involved in the conduct of an
agency's internal deliberations or the making of its official decisions.
The fact that G. L. c. 149, § 1781 provides that "In [the] bargaining
with an employee organization for school employees, the municipal employ-
er shall be represented by the school committee or its designated representa-
tive or representatives" does not change the foregoing conclusion. It is my
opinion that by making a specific reference to a school committee, the Leg-
islature did so, not for the purpose of subjecting it to the requirements of
the Open Meeting Law, but only to recognize a school committee's tradi-
tional independence in the conduct of its own affairs.
That the collective bargaining sessions are not "meetings" within the
meaning of the Open Meeting Law is also evident from the second para-
graph of § 23A thereof, which provides that "Except in an emergency, a
notice of each board meeting shall be filed with the clerk of the municipality
in which the board acts, and the notice or a copy thereof shall, at least twen-
ty-four hours, including Saturdays but not Sundays and legal holidays, prior
to such meeting, be publicly posted in the office of such clerk or on the prin-
cipal official bulletin board of such municipality."
It seems clear that the scheduling of collective bargaining sessions could
not be arranged with the necessary flexibility for their success if the forego-
ing notice requirements were applicable. Nor could such flexibility be real-
ized by treating the sessions as "emergencies" so as to excuse compliance
with such requirements. Many of the sessions, I would expect, could not be
said to be "emergencies" in any true sense of that word.
Nothing in this opinion, 1 wish to add, should be construed as applying
beyond the conduct of the bargaining sessions themselves. 1 express no opin-
ion on the application of the Open Meeting Law to discussions, delibera-
tions or votes of a school committee when not actually engaged in such ses-
sions.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 29. September 12, 1967.
Honorable Owen B. Kiernan, Commissioner of Education
Dear Commissioner Kiernan: — You have asked my opinion on wheth-
er there is a violation of either G. L. c. 7 1 , § 52 or G. L. c. 268A, the Con-
94 P.D. 12
flict of Interest Law, when a resident member of a school committee in town
A teaches in the regular school system of city B while serving as a member of
a vocational regional school district committee for both town A and city B.
The regular school system of city B is not subject to the control of the dis-
trict committee. For the reasons that follow, I conclude that neither statute
is violated.
You state that the Northern Berkshire Vocational Regional School Dis-
trict (the Regional School District) consists of the city of North Adams and
certain towns, including the town of Florida; that the teacher involved is a
resident and an elected member of the school committee of the town of
Florida: that he also serves as an appointed member of the Regional School
District Committee; and that he is also a teacher in the regular school sys-
tem of the city of North Adams, a separate system that does not come under
the supervision of the Regional School District School Committee.
General Laws c. 7 1, § 52 provides in part:
"No member of a school committee in any town shall be eligible
to the position of teacher, or superintendent of public schools
therein, or in any union school or superintendency union or dis-
trict in which his town participates."
A "superintendency district" is organized under G. L. c. 71, § 60, which
provides in part:
"Two or more towns may, by vote of each, form a district for the
purpose of employing a superintendent of public schools therein,
who shall annually be appointed by a joint committee composed
of the chairman and secretary of the school committee of each of
said towns."
A regional school district, however, is different from a superintendency
district. The latter, as you point out in your letter, is created by legislation
that originated in St. 1870, c. 1 83. See Diiffey v. School Committee of Hop-
kinton, 236 Mass. 5, and Pulvino v. Yarmouth, 286 Mass. 21. A regional
school district, on the other hand, is created by legislation that goes back
only to St. 1949, c. 638. See now G. L. c. 71, §§ 14-16L It is "a body poli-
tic and corporate" and is wholly different from a superintendency district.
Because of the fundamental difference in the two types of districts, G. L. c.
71, § 52 cannot be regarded as encompassing the regional type, and it
therefore has no application to this case. This conclusion finds further sup-
port in the fact that G. L. c. 71, § 52 was last amended in St. 1932, c. 90,
seventeen years before the enactment of the regional school district statute.
In view of the foregoing conclusion, I find it unnecessary to express an
opinion on the possible application of G. L. c. 71, § 52 to this case, if re-
gional school districts should be brought within its coverage.
Further, I am of the opinion that there is no violation of the Conflict of
Interest Law. I assume that as a member of the Regional School District
Committee the teacher receives no compensation. Hence, I do not believe
he would violate section 1 7(a) of the Conflict of Interest Law. 1 also assume
that as a member of the Committee the teacher will not be acting as its at-
torney or agent either in prosecuting any claim against the city of North Ad-
ams or in connection with any particular matter in which the city is a party
or has a direct and substantial interest. Hence, I do not believe that he
would violate section 17(b) of the Conflict of Interest Law. Nor does it ap-
P.D. 12 95
pear that the other provisions of that Law, in relation to municipal employ-
ees, would apply.
Finally, I find no inherent incompatibility in the teacher serving in the reg-
ular school system of North Adams and also serving as a member of the
Northern Berkshire Vocational Regional School District Committee. (Cf.
Barrett v. Medford, 254 Mass. 384.) As it does not appear that the Com-
mittee has any control over the regular school system of North Adams, the
teacher does not by his membership on the Committee have any supervision
over himself as a teacher.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 30. September 12, 1967.
Honorable Richard E. McLaughlin, Registrar of Motor Vehicles
Dear Sir: — By letter dated August 1 5, 1967 you have asked my opinion
on the following two questions:
"1. Does the age requirement set forth in Chapter 682 of the Acts of
1 965 apply to any future examinations for the position of Motor
Vehicle Examiner, Registry of Motor Vehicles?
■'2. Is the Massachusetts Commission Against Discrimination required
to consider this age requirement of fifty years as set forth in Chap-
ter 682 of the Acts of 1965 in its determination of an age restric-
tion for this position?"
Chapter 682 of the Acts of 1965 provides in pertinent part:
"SECTION 1 . The director of civil service is hereby author-
ized and directed to conduct an open competitive examination for
motor vehicle examiner, registry of motor vehicles, at some con-
venient time, in his discretion, but no later than September thir-
tieth, nineteen hundred and sixty-five, and notwithstanding any
rule to the contrary regulating the experience or age requirements
of applicants for motor vehicle examiner, registry of motor vehi-
cles, all applicants who meet all other requirements shall be eligi-
ble to take said test and shall be eligible for certification and ap-
pointment, whether or not they have two years or more of satis-
factory, full-time paid experience in which the investigation of
accidents involving motor vehicles was the major duty, provided
they have not passed their fiftieth birthday.
"SECTION 2. Notwithstanding any law, rule or regulation to
the contrary, the director of civil service shall not establish a list
from the examination conducted on June twenty-sixth, nineteen
hundred and sixty-five for motor vehicle examiner, registry of
motor vehicles, until the time provided by law for establishment
of a list for the examination provided in section one has elapsed
at which time the director shall merge the results of both exami-
nations and shall then establish a list from all the marks in the
same manner as if both tests were held on the same date."
96 P.D. 12
The act was passed with an emergency preamble which recited:
" Whereas, The deferred operation of this act would tend to de-
feat its purpose, which is to correct an injustice resulting from the
change in the experience or age requirements for eligibility in the
taking of the motor vehicle examiner, registry of motor vehicles
examination which was held on June twenty-sixth, nineteen
hundred and sixty-five, therefore it is hereby declared to be an
emergency law, necessary for the immediate preservation of the
public convenience."
It is plain that the Legislature was establishing the conditions of only a
particular examination, to be given not later than September 30, 1965. This
single objective appears from (A) the terms of the preamble; (b) the direc-
tion that the examination be given not later than the stated date (§ 1); (c)
the requirement that the results of the examination be merged with the re-
"^ults of an earlier examination held on June 26, 1965; and (d) the require-
ment that a single list be established "in the same manner as if both tests
were held on the same date." (§ 2.) It follows that c. 682 of the Acts of
1965 has no application to future examinations.
As for your second question, I must respectfully refrain from expressing
an opinion, as the question relates to a possible determination by another
agency, the Massachusetts Commission Against Discrimination, and should,
it seems, be submitted by that agency if an opinion is desired. An Attorney
General renders official opinions only on matters requiring action by a state
official in relation to his own actions and decisions. My answer to your first
question is, of course, pertinent to the second question.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 31. September 20, 1967.
Honorable John A. Volpe, Governor of the Commonwealth
Dear Governor Volpe: — You have asked my opinion on whether you
may delegate to the Commissioner of Administration your statutory author-
ity to approve requests of officers and employees of the Commonwealth for
out-of-state travel at public expense. I conclude that you may not do so.
The statute pertaining to such travel was enacted by c. 253 of the Acts of
1920 and is now the last sentence of G. L. c. 6, § 10. It provides:
"No officer or employee of the commonwealth shall travel out-
side the commonwealth at public expense unless he has previous-
ly been authorized by the governor to leave the commonwealth,
and in applying for such authorization the officer or employee
shall specify the places to be visited and the probable duration of
his absence."
Upon consideration of the matter, I am of the opinion that you are not
authorized to make the indicated delegation. It is a settled principle that
"Official duties involving the exercise of discretion and judgment for the
public weal cannot be delegated. They can be performed only in person."
Brown v. Newhuryport, 209 Mass. 259, 266. See Springfield v. Common-
P.D. 12 97
wealth, 349 Mass. 267, 271-272. That principle seems to me to be applica-
ble here. By requiring an officer or employee to "specify the places to be
visited and the probable duration of his absence" in relation to an expendi-
ture of public funds, the statute signifies that approval of travel is not to be
a perfunctory act. It imports investigation and sanction according to sound
judgment, and not a mere ministerial indorsement or ratification.
By the foregoing I do not mean to imply that without delegating your re-
sponsibility, you cannot exercise your authority with the assistance of per-
sons whom you may appoint. That is to say, although you may not delegate
your decision-making responsibility, you may nevertheless assign to other
persons the mechanical and ministerial acts that may be required in the
processing of the travel applications that may be submitted to you. Restate-
ment of Agency, 2d, sec. 78, comment (b).
In thus concluding that you may not delegate your decision-making re-
sponsibility, I am not unaware of cases such as Shreveport Engraving Co.,
Inc. V. United States (5th Cir.) 143 F.2d 222, 226 (1944) sustaining a dele-
gation of authority by the President of the United States. Such cases howev-
er involve situations where the President has been vested with broad author-
ity over the administration of programs so large and complex that a power
of delegation may fairly be implied. In the case of your approval of travel
requests, however, I am of the opinion that the statute, being specific in its
assignment of decision-making duties to you, does not permit you to dele-
gate them to others.
I recognize, of course, that the burdens of the office of Governor are
much greater and more time-consuming than they were in the simpler days
of 1 920 when the legislation under consideration was enacted. Yet its mean-
ing is clear and, in my opinion, prevents you from delegating to the Com-
missioner of Administration your authority to approve travel requests there-
under.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 32. September 22, 1967.
Honorable Theodore W. Schulenberg, Commissioner of Commerce and
Development
Dear Commissioner Schulenberg: — You have requested my opinion
on the validity of a bid submitted to the Division of Housing in your Depart-
ment to provide comprehensive public liability insurance on state-aided lo-
cal housing projects. The bid was submitted on behalf of a New York insur-
ance company, admitted to do business in Massachusetts, by a Massachu-
setts insurance concern, which was licensed here as a broker (i.e., author-
ized to represent applicants for insurance) but was not licensed here as an
agent of the insurance company for which it acted in this case. That compa-
ny was the lowest of three bidders for the insurance in question. No issue is
raised as to the legal sufficiency of the bids submitted by the second and
third companies.
After careful consideration of the matter, I am of the opinion that the bid
in question was valid. There is no requirement in the General Laws that a
98 P.D. 12
foreign insurance company that has been admitted to do business in Massa-
chusetts may issue liability insurance only through a licensed agent. The
provision of G. L. c. 175, § 157 requiring foreign insurance companies, ad-
mitted to do business here, to make their contracts through resident agents
applies only to "contracts of insurance upon [ 1 ] lives, property or interests
therein, and [2] annuity or pure endowment contracts on lives therein, and
[3] contracts of suretyship with or in favor of residents [of the Common-
wealth] . ..." A contract of liability insurance, however, is not encompassed
in any of the foregoing classes of contracts. Plainly, it does not come within
classes [2] and [3] ; nor does it come within class [ 1 ] . Liability insurance
is an assumption by an insurance company of its insured's potential liability
for causing damage to third persons. Vance, Handbook on the Law of In-
surance, 3rd ed. (1951) p. 999. Class [1] insurance, on the other hand,
commonly described as insurance "on" property or "on" life, provides in-
demnity against possible loss of something of value. Thus as stated by Chief
Justice Shaw in a case involving a fire insurance policy,
"An insurance of buildings against loss by fire, although in pop-
ular language it may be called in insurance of the estate, is in
effect a contract of indemnity, with an owner, or other person
having an interest in the preservation of the buildings, as mortga-
gee, tenant, or otherwise, to indemnify him, against any loss,
which he may sustain, in case they are destroyed or damaged by
fire " Wilson v. Hill, 3 Met. 66, 68.
See also Converse v. Boston Safe Deposit and Trust Co., 315 Mass. 544,
548, 550; Lynn Gas & Electric Co. v. Meriden Fire Insurance Co., 158
Mass. 570.
Further, I find no violation of G. L. c. 175, § 163, relative to the licens-
ing of agents of insurance companies. Section 1 63 prescribes a procedure
for the licensing of insurance agents. Its only terms of prohibition however
are contained in a sentence that provides:
"Whoever, not being a duly licensed insurance broker . . . acts as
an insurance agent . . . without [a] license or during a suspension
of his license, shall be punished by a fine of not less than twenty
nor more than five hundred dollars." (Emphasis supplied.)
In the present situation, the representative of the low bidder, although not
licensed as an agent, was, as you state, licensed as a broker. By the express
exclusion just quoted, he was therefore not prohibited from acting as an
agent. No other prohibition being applicable, I find, on the facts that you
have presented, no irnpediment in the bid. If otherwise in compliance with
your requirements, it may be accepted.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 33. September 28, 1967.
Hon. Howard Whitmore, Commissioner, Metropolitan District Commis-
sion
Dear Commissioner Whitmore: — You have requested my opinion on
whether the 52% reduction that the Metropolitan District Commission
P.D. 12 99
(MDC) is required by St. 1959, c. 612, § 9* to make in the city of Boston's
debt service payments toward the Metropolitan Sewerage District (the Sew-
erage District), "[if] ... the Boston main drainage district has not been
connected to sewers operated by the [Sewerage District]. . .," may be
changed as the result of the completion in May, 1967 of only one of two
planned connections.
The background of the legislation is detailed in an opinion of the Attor-
ney General on August 28, 1961 (Report of the Attorney General for the
Year Ended June 30, 1962, p. 69). The cited opinion ruled that the 52%
ratio could not be changed even though inequities might be found to exist in
its application. It appears, however, that the opinion was addressed to a sit-
uation where no connections of any sort had been made between the Boston
Main Drainage System and the Sewerage District.
The authority of the MDC to fix the proportionate contributions of mem-
ber cities and towns toward the Sewerage District is contained in G. L. c.
92, §§ 5 and 5 A, appearing in St. 1959, c. 612, § 3, as amended by St.
1 96 1 , c. 230. In pertinent part § 5A reads as follows:
"Not later than September first in the year nineteen hundred
and sixty-one and in each year thereafter, the commission shall
establish, as provided in section five, the proportion in which
each of the cities and towns served by said system shall annually
pay money to the commonwealth to meet interest and principal
requirements to be borne by all cities and towns served by the
metropolitan sewerage system; provided, however, that no
changes shall be made in the proportions established in the year
nineteen hundred and sixty except such as are occasioned by con-
struction and connections authorized by law after January first,
nineteen hundred and sixty or authorized by the commission un-
der section two or by changes, authorized by the commission,
made in a municipality's sewer connections to said system subse-
quent to said January first. . . ."
Section 9 of St. 1 959, c. 6 1 2 provides:
"If on any November first the Boston main drainage district
has not been connected to sewers operated by the metropolitan
sewerage district, fifty-two percent of the amount which would be
apportioned to the city of Boston, under chapter ninety-two of the
General Laws as amended by sections two, three and four of this
act for interest and principal shall be divided among all other cit-
ies and towns in the sewerage district, and only such portion of
the area of the city of Boston as is presently served by the metro-
politan sewerage system shall be considered to be a part of the
metropolitan sewerage district in the apportionment of the cost of
maintenance and operation as provided in section six of chapter
ninety-two of the General Laws as amended by section three of
this act."
After careful consideration 1 am of the opinion that in the existing situa-
tion the full 52% reduction must continue to be applied to Boston's propor-
tionate share. It appears that at the time of the enactment of St. 1959, c.
6 1 2 Boston had one section of its drainage system connected to the Sewer-
Section 9 was not inserted in the General Laws.
100 P.D. 12
age District but a second section, known as the Boston Main Drainage Sys-
tem, had not been connected at any point to the Sewerage District. See Re-
port of the Special Commission to Study the System of Sewerage Disposal
and the Water System in the Metropolitan District and City of Boston, 1959
Senate Doc. No. 595, p. 9. See St. 1951, c. 645. The statutory device that
was employed to avoid charging Boston for its unconnected Main Drainage
System was ( 1 ) to apportion to Boston, as to other municipalities, a fixed
percentage* of the debt service of the entire Sewerage District (including
the Boston Main Drainage System) as though each municipality was fully
utilizing the District's facilities and then (2) to allow, as provided in § 9
quoted above, the city of Boston a 52% reduction in the apparent belief
that the 52% reduction fairly took into account the as yet unconnected Bos-
ton Main Drainage System.
Nothing in § 9 expressly provides for an adjustment of the 52% factor if
Boston should have made a partial connection on an apportionment date;
and I am of the opinion that provision for such an adjustment cannot be im-
plied. Pertinent to the matter is the decision of the Supreme Judicial Court
in the case of Milton v. Metropolitan District Commission, 342 Mass. 222,
holding that St. 1959, c. 612, § 5, 5A fixed for a period of five years the
basic percentages of each municipality's contribution,* and that the town of
Milton's contribution to the Sewerage System could not be reduced during
that period, at the instance of the town, because of a decrease in the town's
need for the Sewerage System. In that case the Court said at page 227,
"Even if an injustice or a hardship were to result, it is not the
province of this court to so interpret the language of the statute
that such a result may be avoided, where, as here, the language of
the statute, taken as a whole, is clear and unambiguous. [Cita-
tions] To stretch the meaning of a statute so as to adjust an al-
leged injustice, inequity or hardship could cause a multiplicity of
interpretations as each alleged injustice, inequity or hardship
arose."
The only affirmative authority of the MDC to make adjustments in a
municipality's proportionate share, specified in § 9, of the debt service
charges is contained in G. L. c. 92, § 5A, quoted above. Adjustments must
be only "such as are [ 1 ] occasioned by construction and connections au-
thorized by law after January first, nineteen hundred and sixty or [2] au-
thorized by the commission under section two or [3] by changes, author-
ized by the commission, made in a municipality's sewer system connections
to said system subsequent to said January first. . . ." In the present case
none of these three conditions appears to be applicable.
I also observe that allowing Boston the full 52% reduction despite a par-
tial connection does not necessarily result in a windfall to that city. It may
be that a partial connection will not proportionately reduce the operating
and maintenance charges that Boston would still have to bear for the uncon-
nected remainder of its Main Drainage System. Certain of these charges
may be constant and may remain unchanged until the full connection is
made.
'Boston's percentage was 36. 18'r .
'St. 1'>6I, c. 2M) amended G. L. c. 92, S 5A, inserted hy St. \9f\9. c. 612, ij 3, by providing for an annual
adjustment of the basic percentages if any of the conditions enumerated in -5 5A quoted above was
P.D. 12 101
By the foregoing I do not mean to imply, if only a minor and insubstan-
tial connection remains to be made, that Boston would still be entitled to the
reduction afforded by the 52% factor. In the present case, however, the in-
complete connection does not appear to be of that character.
In summary, then, on the facts submitted, I conclude that no adjustment
can yet be made in the 52% factor applicable to Boston's share.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 34. October 4, 1967.
Richard M. Millard, Chancellor, Board of Higher Education
Dear Chancellor Millard: — You have sent me a request of the Board
of Trustees of State Colleges asking for my opinion on certain legal aspects
of an application by Gregory J. Cunningham to withdraw his resignation as
a Midshipman at the Massachusetts Maritime Academy where he was en-
rolled as a member of the Class of 1968. The background of the matter, as
stated in various documents accompanying the request, so far as the facts
appear to be beyond dispute, is briefly as follows:
Late Saturday evening, April 15, 1967, or early Sunday morning of the
next day. Midshipman Timothy F. Hayes, 2d, was injured as the result of an
assault on him while on board the Academy's training ship Bay State in port
during a training cruise at Freeport, Grand Bahama Island. On Sunday, the
1 6th, following an investigation by Lt. Commander Alan McNaughton,
USNR, who listed three witnesses to the assault. Midshipman Cunningham
was placed on report for "Assaulting Another Midshipman" and was given
a written notice, entitled "Subj: Violations of Regulations, Class I Offense,"
signed by Captain Louis A. Woodland, USNR, the ship's master, stating
"[1 ] On Sunday, 16 April 1967, you were reported for the following of-
fense: Assaulting Another Midshipman. [2] A special Board of Officers
will be convened, in accordance with Article 100.9 of Academy Regula-
tions, on Tuesday, 18 April 1967. [3] You are notified that you may sub-
mit a written statement, or indicate that you do not so desire, in writing and
[4] You are reminded that in accordance with Article 100.10 you may se-
lect an officer of the Academy staff to act as your advisor." It does not ap-
pear that Captain A. Sanford Limouze, USMS. the President of the Acade-
my, was on the cruise. Captain John G. Stein, USMS, the Commandant of
Midshipmen, was aboard. The documents submitted to me do not indicate
Midshipman Cunningham's exact age, but it is plain that he is under the age
of twenty -one and is probably nineteen years old.
On April 1 8th the Board, consisting of three members selected by Cap-
tain Woodland, convened and conducted an inquiry. Midshipman Cun-
ningham had no counsel and was not present during the testimony of the
various witnesses. Whether or not he was told by the Board that the Board
would appoint "counsel" if he so desired is not entirely beyond dispute.
President Limouze, in a statement to the Trustees' Committee on Student
Activities, referred to below, asserts that the senior member of the Board
has reported to him that the Board offered to appoint an officer to serve as
counsel but that Midshipman Cunningham declined the offer. Midshipman
Cunningham concedes that the Board offered to appoint someone to be his
"advisor."
102 P.D. 12
When called before the Board, Midshipman Cunningham submitted a
paper declaring "I have no written statement to make at this time." The
Board asked him if he had anything to say, whereupon he made certain
statements, which the Board regarded as admissions, and the Board asked
him questions.
At the conclusion of the hearing, the Board, on April 18, prepared a
written report to President Limouze, stating that the Board had convened
" [i]n accordance with Article 100.09" of the Academy's regulations, that it
had investigated the offense and that "It was ascertained by admission and
investigation that the subject Midshipman [Cunningham] did commit as-
sault on the person of Midshipman Timothy F. Hayes, 2d, Class of 1968,
on 16 April 1967." The report also stated, "It is the unanimous decision of
the Board that Midshipman Gregory John Cunningham be dismissed from
the Academy. The Board took into consideration the extent of the injuries
sustained by Midshipman Hayes in arriving at this decision. Medical Offi-
cer's statement concerning list of injuries attached."* The report was deliv-
ered to Captain Woodland who forwarded it through Captain Stein to Presi-
dent Limouze by indorsement dated April 18, 1967. On the following day
Captain Stein added his own indorsement, which will be referred to below.
Prior to the convening of the Board, Midshipman Cunningham had asked
Lt. Commander McNaughton, his division officer, to serve as his counsel
before the Board. Lt. Commander McNaughton declined. Midshipman
Cunningham then asked Lt. Commander McNaughton for advice, whereup-
on they discussed the Academy's regulations and the possibility of Midship-
man Cunningham resigning from the Academy.
On April 1 8 (whether before, during, or after the hearing is unclear)
Midshipman Cunningham signed and delivered to someone on the ship a
document reading "I hereby submit my resignation from the Massachusetts
Maritime Academy." It added, "My reason for this request is: Personal."
The document reached Captain Stein who indorsed it on April 1 9 to Presi-
dent Limouze. Captain Stein's previously mentioned indorsement, on the
same day, of the Board's report of its hearing contained the statement, "Re-
commend that request for resignation be considered."
On April 22, the Bay State returned to Massachusetts, docking at Boston.
The various documents were delivered to President Limouze, who indorsed
on the resignation, "Resignation accepted this date. [April 22.]" No action
was then taken or has since been taken on the Board's report and recom-
mendation. Midshipman Cunningham's enrollment at the Academy there-
upon terminated.
Subsequently, on July 18, 1967, as the result of a complaint by Mrs. Ed-
ward A. Cunningham, Midshipman Cunningham's mother, that her son had
been "forced" to resign, the Board of Trustees of State Colleges July 1 8,
1 967 directed its Committee on Student Activities to investigate the matter
and also to report on a request by Mrs. Cunningham that her son be allowed
to rescind his resignation and to be heard with counsel. The Committee
thereupon requested President Limouze, on the one hand, and Mrs. Cun-
ningham (who had then engaged counsel), on the other, to submit written
statements of the matter, with written rebuttal statements, if they desired, of
each other's statement in chief. Based on the original and rebuttal state-
''"Not attached to this opinion.
P.D. 12 103
ments, which President Limouze and Mrs. Cunningham submitted, and
without interviewing any of the persons concerned, a majority of the Com-
mittee reported to the Board of Trustees that the hearing before the Board
did not comport with requirements of due process in that Midshipman Cun-
ningham had no counsel, was not afforded an opportunity to confront his
accusers and to cross-examine them, and was not advised of his right to re-
main silent. The report also noted a "possible failure" of the Academy to
comply with its own regulations respecting the appointment of the Board.
On the basis of the foregoing, the Committee declared that "Midshipman
Cunningham's resignation was too closely connected with the order of
events to let me [the author of the Committee's report] believe that it
should be allowed to stand in view of the request for rescission." The Com-
mittee then recommended to the Board of Trustees that Midshipman Cun-
ningham "be given the right to rescind his resignation and, if exercised, to
be reinstated as a Midshipman in the Academy." The foregoing report has
not yet been acted on by the Board of Trustees.
Through the Chancellor of the Board of Higher Education, the Board has
now asked me the following questions:
"1 . Under Chapter 73 of the General Laws of the Commonwealth and
the regulations of the United States Department of Commerce is the
nature of the Massachusetts Maritime Academy a military or civil-
ian institution? As such, are investigative procedures of a military
or civilian nature to be expected?
"2. Have the procedures used by the Massachusetts Maritime Academy
in the subject case provided adequate safeguards of the constitu-
tional rights of the midshipman involved?
"3. Would the Board of Trustees be on safe legal ground in upholding
the action of the administration of the Maritime Academy in
a. accepting the Cunningham resignation? and
b. accepting the recommendation of the Board of Inquiry that Cun-
ningham be dismissed from the Academy?"
The province of the Attorney General, as settled by long established
practice, when he is asked for a formal legal opinion by a state agency, is to
deal only with the legal issues, not to endeavor to give his appraisal or per-
sonal judgment of the total situation. Accordingly, I will confine myself to
the legal issues only. I will begin by describing the nature of the Academy
in order that the legal issues may be viewed in the context out of which they
arise.
The Massachusetts Maritime Academy is a state institution located at
Buzzards Bay. Now provided for by G. L. c. 73, § 1, it was established by
St. 1891, c. 402 as the Massachusetts Nautical Training School. By St.
1913, c. 224, § 1, the school's name was changed to Massachusetts Nautical
School. By St. 1942 (Spec. Sess. c. 1, § 1 ) the institution was given its pre-
sent name. Today it offers a three-year college-level course to train young
men to qualify for licensing as deck and engineering officers in the merchant
marine and for commissioning as ensigns in the United States Naval Re-
serve. It awards a Bachelor of Science degree.
Prior to 1 964 the school was under the supervision of a Board of Com-
missioners and a superintendent. By St. 1964, c. 561, § 1 the Board was
abolished and St. 1964, c. 561, § 8 placed the school under the Board of
104 P.D. 12
Trustees of State Colleges, "which board shall have general management of
... the Massachusetts Maritime Academy." St. 1964, c. 561, § 7, amending
G. L. c. 73, § 1 . The Board was directed "to provide and maintain the Mas-
sachusetts Maritime Academy as a nautical college for the instruction of
students in the science and practice of navigation, seamanship and marine
engineering, accommodations therefor on board a proper vessel at its pres-
ent 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 remove necessary in-
structors and other employees, determine their compensation, 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. Said trustees shall establish an annual service
fee for each midshipman, other than out-of-state students, in an amount not
less than one hundred and fifty dollars annually for each such midshipman.
"The trustees may receive from the federal government, and use for the
accommodation of the Maritime Academy, vessels detailed by the secretary
of the navy." St. 1 964, c. 56 1 , § 8, amending G. L. c. 73, § 1 .
Under the Federal Maritime Academy Act of 1958, 46 U.S.C. §§ 1381-
1388, Congress declared that its policy to develop, encourage and maintain
a merchant marine should include "assisting and cooperating with the States
and Territories in the operation and maritime academies or colleges for the
training of merchant marine officers." 46 U.S.C. § 1381. To effectuate this
policy, the Act authorized the Secretary of Commerce to furnish to Massa-
chusetts, as well as to other states, "a training vessel for a maritime acade-
my or college meeting the requirements of [the Federal government]," 46
U.S.C. § 1382(b). The Secretary was also authorized to make contracts for
financial assistance to state maritime academies. 46 U.S.C. § 1383. An
academy's use of vessels and its right to receive financial assistance were
however conditioned on the academy conforming to "such standards in
[its] course [of instruction] , in training facilities, . . ., and in instructors, as
are established by the Secretary after consultation with superintendents of
maritime academies and colleges in the United States." 46 U.S.C. § 1 384(a)
(2). The Secretary was also authorized to "establish such rules and regula-
tions as may be necessary to carry out the provisions of [the Act]." 46
U.S.C. § 1387.
By regulations of the United States Maritime Administration, which is
within the Department of Commerce, certain minimum standards have been
established for state maritime academies and colleges. General Order 87
(rev. March 13, 1967) 46 CFR §§ 310.1-310.12. The regulations provide
that "Each school shall establish a demerit system for Cadet infractions of
the Schools' [sic] Rules and Regulations." § 310.10(b). "Rules and regula-
tions for the internal organization and administration of each School will be
determined under the direction of the State authority." § 310.3(b) (4). I as-
sume that the Massachusetts Maritime Academy has entered into a standard
form of financial assistance agreement with the Maritime Administration of
the Department of Commerce, as prescribed by § 310.12. Article 6 of such
an agreement provides that "This Agreement is subject to all the provisions
of Administrative General Order 87." ^^ 3 10. 1 2.*
The Academy's booklet on "General Information and Intrance Requirements " states, "The Academy
is subject to the resjulations of the Training Organization of the United States Maritime Admmistra-
tion."
P.D. 12 105
It is, in my opinion, clear that the Massachusetts Maritime Academy is,
in a legal sense, a civilian, not a military, institution. That is, its students
are not an element of the armed forces of the United States. The students
do, it is true, on graduation, become eligible to apply for commissions as
ensigns in the United States Naval Reserves. Yet they are not, while at the
Academy, members of the United States Navy or of its Reserves.
Nonetheless, it is well recognized that many of the features of a Navy in-
stitution apply to the Academy. Service at sea has traditionally demanded
adherence to high standards of discipline. Officers, in particular, have been
expected to meet rigorous requirements of discipline and personal conduct,
since the safety of crews and ships cannot be left to the hands of men who
lack the discipline and capacity to follow their superiors and to direct their
subordinates. It is for this reason that the pamphlet containing the General
Information and Entrance Requirements for the Academy states, ''Only
young men of rugged physique, determined in their desire for a seafaring
life and its associated industries, and amenable to strict discipline, should
apply for admission."
I turn now to the proceedings of the Board of Inquiry in Midshipman
Cunningham's case. You have furnished me with a copy of "Regulations
and Instructions for the Battalion of Midshipmen of Massachusetts Mari-
time Academy," promulgated in 1 965 over the signature of the President of
the Academy. Each student received a copy. Midshipman Cunningham re-
ceiving his on June 21,1 966.
The regulations appear to be patterned after those in force at the United
States Merchant Marine Academy at Kings Point, New York. See Wasson
V. Trowbridge, Acting Secretary of Commerce , 382 F2d 807 (2d Cir., Sept.
13,1 967). They begin with a preamble reciting:
"Honor, integrity, loyalty to superiors, and reverence for the
traditions of the Merchant Marine of the United States are funda-
mental characteristics and attributes of a successful Merchant
Marine Officer. Any Midshipman unable to conduct himself in a
manner indicating the highest standard of honesty, integrity, and
manliness, is not worthy to become a licensed Merchant Marine
Officer or to enjoy the privileges and receive the education and
training provided by the Commonwealth, and shall be subject to
separation from the Academy."
Article 100.00 provides:
"A high standard of discipline must be maintained at the
Academy. The regulations, instructions, rules and orders which
control the discipline of the Academy and its corps of Midship-
men, are prescribed by the President. There must be no hesitancy
or failure on the part of a Midshipman to recognize the authority
delegated by the President to subordinate officers. It is considered
serious misconduct for any Midshipman, alone or in concert with
others, to adopt any measure — oral or written — for the pur-
pose of violating or evading any Academy rule or regulation. No
Midshipman, alone or in concert with others, shall commit any
act contrary to the rules of good order or discipline, or endeavor
to induce others to commit such an act."
Breaches of Academy discipline are placed in three categories. Classes I,
106 P.D. 12
II and III, respectively. Class I offenses are those which may be punished
by dismissal; Class II offenses are those which may result in not more than
100 demerits for each offense, and other punishment, short of dismissal.
Class III offenses are the least serious and are punishable by not more than
50 demerits.
If a Class I offense is involved, certain procedural safeguards must be fol-
lowed. Article 100.09 provides in part:
"a. When the Commandant of Midshipmen classifies or concurs
in classifying a deficiency as a Class I Offense, and has the
approval of the President, he shall immediately serve the
Midshipman concerned with a statement containing formal
charges and specifications in writing and shall advise the
Midshipman that he may submit a written statement in re-
ply within 24 hours. If the Midshipman does not desire to
make such a statement, he must so indicate in writing. If,
however, he chooses to make a statement, it will become a
part of the record in any subsequent investigation and hear-
ing. The Commandant of Midshipmen shall also recom-
mend to the President that a Special Board of Officers be
convened, which Board shall consist of at least three
Officers.
"b. The Special Board of Officers shall convene no sooner than
24 hours after the Midshipman has been served with the
charge and shall conduct a thorough inquiry into the facts
of the case. The Midshipman and his counsel (see Article
100.10) shall appear before the Board. . . ."
The decision of the Board of Officers takes the form of a recommendation
to the President of the Academy. The recommendation can be either ( I ) ex-
oneration, (2) an award of demerits or (3) dismissal. (Art. 100.09(b).) If the
Board recommends dismissal and the President approves, "the President
will forward his recommendations to the Board of Trustees for final action."
(Art. 100.09(d).) Article 100.10, entitled "Right to Counsel," provides that
a midshipman who is charged with a Class I offense "shall be free to select
as counsel any officer on the Academy staff willing to so serve. In the event
that the midshipman is unwilling or unable to obtain such counsel, the Pres-
ident may appoint an officer to serve in such capacity." Article 100.10(b)
provides in part that "Such counsel shall function as an advisor rather than
as an advocate. He is to furnish the Midshipman with guidance so as to ena-
ble the Midshipman to present his position, truthfully and with clarity and
accuracy. It is not the function of the counsel to encourage the use of any
tactics or techniques of evasion so as to prevent the Board from ascertaining
the truth of the matter before it."
Article 100.12 is entitled "Resignation While Under Charge of a Class I
Offense." It provides, "Prior to the convening of the Special Board of Offi-
cers in the case of a Class I Offense, the Midshipman so charged may vol-
untarily submit his resignation. Subsequent to the convening of the Special
Board, the President may refuse to accept the resignation of the Midship-
man so charged."
Turning now to Midshipman Cunningham's case, in the light of the
Academy's regulations that have been furnished to me, the facts establish
P.D. 12 107
that the President of the Academy was not on board the Bay State when the
Board convened and he did not prior to the convening of the Board approve
the bringing of formal charges against Midshipman Cunningham. (Art.
100.09(a).) Nor did the President receive or act on any recommendation
that a Board be convened. (Art. 100.09(a).) Finally, the President did not
convene the Board nor appoint its members. Rather the Board was appoint-
ed and convened by Captain Woodland, the master of the Bay State.
Article 100.09(a) of the Academy's regulations, quoted above, states that
"When the Commandant of Midshipmen classifies or concurs in classifying
a deficiency as a Class I Offense, and has the approval of the President, he
shall immediately serve the Midshipman concerned with a statement con-
taining formal charges. . . ." (Emphasis supplied.) Article 100.09(a) also
provides that "The Commandant of Midshipmen shall also recommend to
the President that a Special Board of Officers be convened, which Board
shall consist of at least three officers." This sentence is followed by Art.
100.09(b) which begins with the statement, "The Special Board of Officers
shall convene no sooner than 24 hours after the Midshipman has been
served with the charge and shall conduct a thorough inquiry into the facts of
the case."
In my opinion, the foregoing provisions place on the President alone the
responsibility of making the final decision as to whether formal charges
shall be brought for a Class I offense and also whether a Board shall be ap-
pointed and convened to hear the matter.
Nothing in the regulations, I observe, allows the President to delegate his
responsibilities in these matters to any other person. Nor, in my opinion,
can any such power of delegation be implied. The decisions that the Presi-
dent is required to make in respect of proceedings in Class 1 offenses plainly
contemplate and require the exercise of his personal judgment and discre-
tion. Since a Class 1 offense may result in dismissal of a Midshipman from
the Academy, the President's direct and independent action and judgment
are essential both for the bringing of formal charges for a Class 1 offense
and also, if an offense is so classified, for the valid appointment and conven-
ing of a Board of Officers to investigate and report on the matter. This per-
sonal participation of the President is required in order to ensure that a vio-
lation will not, without his deliberate reflection, be treated as a Class I of-
fense, that it will be handled consistently with like matters at the Academy
and that the Board of Officers who are assigned to hear the matter will be
carefully selected for the major responsibility that they must discharge. The
fact that an infraction may occur while the Midshipmen are on a training
ship away from Buzzards Bay does not change this conclusion. The required
authority, under the regulations that have been furnished to me, can be ex-
ercised only by the President.
It follows that the failure to conform to the Academy's regulations in
Midshipman Cunningham's case rendered the Board's proceedings invalid
as a basis for ordering his dismissal. The law is settled that "regulations val-
idly prescribed by a government administrator are binding upon him as well
as the citizen. . . ." Service v. Dulles, 354 U.S. 363, 372. To the same effect,
see Vitarelli v. Seaton, 359 U.S. 535, 539-540, 546-547. A material depar-
ture from regulations, as in the decision to bring formal charges and to ap-
point and convene the Board in the present case, without the personal action
of President Limouze, must therefore be regarded as depriving the Board's
action of any force as a basis for dismissal under the Academy's regulations.
108 P.D. 12
The facts show, however, that Midshipman Cunningham's enrollment at
the Academy terminated as the result of his resignation, not as the result of
a dismissal. And it does not follow from the invalidity of the Board's pro-
ceedings as a basis for a dismissal that Midshipman Cunningham must now
be allowed to withdraw his resignation. Certainly, on the basis of the facts
before me, it cannot be said as a matter of law that he is entitled to do so.
The matter is rather essentially one for the exercise of a wise, informed
judgment of the Trustees, giving appropriate weight, as they must, to the de-
termination of President Limouze in the light of his responsibility to admin-
ister the Academy fairly and firmly as an institution for the training of
youths for the rigorous life of seafaring men. These youths are to follow in a
great line of men "that do business in great waters." President Limouze, as
the public official directly responsible for the training of these youths, may
properly be regarded by the Trustees of State Colleges as having broad dis-
cretion in the handling of student discipline. Accordingly, the Trustees, if
they are reasonably satisfied that the President did not exceed his discretion,
may properly sustain his action. Specifically, if the Trustees are reasonably
satisfied that although President Limouze did not initially approve the
bringing of formal charges and although he did not appoint or convene the
Board of Officers, he did, in the light of all the facts and circumstances, nev-
ertheless treat Midshipman Cunningham fairly in accepting his resigna-
tion, the Trustees may properly decline to permit Midshipman Cunningham
to withdraw it. Mere generalities, of course, cannot be the test of fairness in
this regard. "The precise nature of the interest that has been adversely af-
fected, the manner in which this was done, the reasons for doing it, the
available alternatives to the procedure that was followed, the protection im-
plicit in the office of the functionary [President Limouze] whose conduct is
challenged, the balance of hurt complained of and good accomplished —
these are some of the considerations that must enter into the [Trustees']
judgment." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
1 23, 163. It may be that in the present case President Limouze was justifia-
bly satisfied that Midshipman Cunningham did in fact commit the offense
with which he had been charged but that concern for the youth's future,
which would be marred by a record of dismissal, led the President to con-
sent to a mode of departure from the school that would not carry a stamp of
misconduct.
If, on the other hand, the Trustees, after consideration of the matter,
should nevertheless conclude that Midshipman Cunningham should be per-
mitted to withdraw his resignation, it does not, I wish to point out, follow
that he must thereby be reinstated without qualification. Full reinstatement
could, in my opinion, properly be conditioned on the outcome of a new
hearing to be held before a properly convened Board of Officers to consider
the assault charges against Midshipman Cunningham as though his enroll-
ment in the school had not terminated.
Directing my attention now to the specific questions that the Trustees
have submitted to me, my replies are as follows:
1 . I believe that I have answered the first part of this question in the
course of my description of the Academy. The second part of this
question is extremely vague in its inquiry whether "investigative pro-
cedures of a military or civilian nature [are] to be expected [at the
Academy]?" Military, no less than civilian procedures, are expected
to be fair.
P.D. 12 109
2. The question whether the Academy "provided adequate safeguards
of the constitutional rights of [Midshipman Cunningham]" is once
again extremely vague. Because of my determination that the Board
of Officers was illegally convened, 1 find it unnecessary, however, to
embark on the broad constitutional inquiry that the question sug-
gests. The essential issue, moreover, in the present case is not the ad-
equacy of the Academy's procedures in the conduct of the hearing by
the Board of Officers but rather the action of President Limouze in
accepting Midshipman Cunningham's resignation. Although the two
matters may be related, it is for the Trustees, as I have already indi-
cated, to make the final judgment in the light of all the facts and cir-
cumstances before them.
3. Question 3a has already been answered in the course of this opinion.
Since the Board of Officers was illegally convened, and since in any
event the President has not approved the recommendation of dis-
missal (Art. 100.09(d)), my answer to Question 3b is in the negative.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 35. October 9, 1967.
George W. Kjllion, Secretary, Milk Control Commission
Dear Mr. Killion: — You have asked, in behalf of the Milk Control
Commission, for my opinion regarding the provisions of G. L. c. 94A, § 13
(d). Chapter 94A is the Milk Control Law, and § ! 3 authorizes certain
inspections by the Milk Control Commission and requires certain informa-
tion to be submitted to the Commission by all milk dealers required to be
licensed under the chapter. Section 1 3 (d) states:
"The information obtained by any inspection authorized or re-
ports required by this chapter or by similar provisions of earlier
law shall be treated as confidential and shall not be disclosed by
any person except as may be required in the proper administra-
tion of this chapter; provided, that the commission may use such
information together with other similar information, for compila-
tion and publication of statistics of the milk industry in this com-
monwealth. Such statistics shall not contain the name of, or dis-
close, by inference or otherwise, information obtained from the
books and records of any milk dealer." (Emphasis supplied.)
You have stated in your letter:
"Effective August 19, 1958, the Milk Control Commission is-
sued Official Order No. G 17-450, requiring milk dealers in the
Greater Boston Area to file reports disclosing processing, packag-
ing and distribution costs for such dealers' businesses. . . These
reports were required by the Commission and submitted by the
milk dealers under the provisions of the Milk Control Law, G. L.
c. 94A, Sections 13 (b) and 13 (d).
"Amendment No. 1 to Official Order G 17-450, effective De-
cember 13, 1958, was issued subsequently, requiring cost reports
for a later time period. All of these reports are still in the files of
this agency.
110 P.D. 12
"A combined average summary of all the reports was prepared
and used, in accordance with law, for statistical information at a
public hearing.
"On August 15, 1967, the Commission was in receipt of a let-
ter signed by Edward B. Hanify, Attorney for H.P. Hood and
Sons, Inc., and by C. Keefe Hurley, Attorney for nine other great-
er Boston milk dealers."
In that letter, a copy of which you have enclosed, attorneys Hanify and
Hurley, "being duly authorized," purported to "waive any privilege of con-
fidentiality" in behalf of their respective clients, named in the letter, and
asked the Commission to make available for inspection and copying by each
of the other's clients the cost questionnaires and supporting schedules and
work sheets filed with the Commission by their own clients pursuant to the
foregoing Official Order.
You then state;
"The Commission is uncertain as to whether or not this re-
quested information can be made available and whether or not
the letter, making such request, can be treated as a waiver of the
confidentiality provisions of the Milk Control Law, inasmuch as,
the summary of all reports was testified to and is part of a public
record with the names of the milk dealers whose reports were in-
cluded in the summary. Thus, on the basis of the reports request-
ed, there may be disclosure of the operations of other milk deal-
ers who are not parties to the pending court action."
It is my opinion that you may not make these reports available for the
requested inspection and copying. The statute states that the information
submitted by the milk dealers, ". . . shall be treated as confidential and shall
not be disclosed by any person. . . ." (Emphasis supplied.) The only excep-
tion to this bar is when a disclosure may be required "in the proper admin-
istration of this chapter," which I interpret to refer to instances when the
information whould be required by the Commission itself in the discharge
of its responsibilities. Nothing in the letter of Messrs. Hanify and Hurley
brings their request within that situation.
I do not feel justified in assuming that the requirement of confidentiality
was designed solely to protect the private interests of the individual milk
dealers. If this was the only purpose, the dealers would be the only interest-
ed parties and might accordingly be entitled to waive confidentiality. The
Legislature may, however, have had other reasons for the requirement. For
example, it may have believed it to be undesirable for competitors to be
able, in this manner, to share detailed information of this type. In any event,
since the statutory prohibition is clearly expressed, and not ambiguous, I am
not disposed to construe it as creating a mere personal privilege which may
be waived.
I consider it significant, moreover, that the statute says not only that the
information submitted by the dealers "shall be treated as confidential," but
also that the information "shall not be disclosed by any person." I regard
this latter provision as establishing an absolute bar to disclosure, not a qual-
ified bar which might be waived by a particular dealer. For this reason, I
find it unnecessary in the present situation to consider the possibility, allud-
ed to in your request, that the release of the information in the reports.
P.D. 12 111
when read together with data that is already a matter of public record,
might indirectly divulge confidential information that dealers who have not
joined in the request to the Milk Control Commission have filed with the
Commission.
In conclusion, it is my opinion that you may not grant the described re-
quest.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 36. October 10, 1967.
Honorable John A. Gavin, Commissioner of Correction
Dear Commissioner Gavin: — You have requested my opinion on the
effect of St. 1967, c. 379, amending G. L. c. 127, § 129, on the calculation
of good conduct deductions in the sentences of prisoners who have been re-
turned to correctional institutions for violation of parole. The amendment
reads as follows:
"A prisoner released on parole by the parole board, who has
failed to observe all the rules of his parole and has been returned
to a correctional institution for the violation of his parole, shall
not receive deductions described in this section until he has
served six months following his return to the correctional institu-
tion." (Emphasis supplied.)
Prior to the amendment, the phrase "until he has served six months fol-
lowing his return to the correctional institution" read: "for any of the first
six months after he is returned to the correctional institution." In the case of
Allen V. Massachusetts, 1967 Mass. Adv. Sh. 767, the Supreme Judicial
Court held that the latter provision meant that "good conduct deductions
are not to be earned during the [first six months after the prisoner is re-
turned] but also that deductions based on the portion of the sentence, if
any, remaining after the six-month period are not to be credited until the six
months have elapsed." p. 770.
In its opinion (page 769, footnote 1 ) the Court noted that in the process
of enacting the provision in question, which was inserted by St. 1965, c.
884, § 3, the Legislature had rejected an amendment which would have
read as follows:
"Notwithstanding any provisions of this section to the contrary
relative to deductions from sentences, a prisoner whose parole
has been revoked by the parole board and who has been returned
to a correctional institution ... for violation of his parole shall
not be entitled to a certificate of discharge nor released until he
has served at least six months on said sentence from the date of
his return, provided, however, that the provisions of this para-
graph shall not be construed as authorizing any prisoner to be
held beyond the maximum term of imprisonment to which he was
sentenced." (Emphasis supplied.)
It will be observed that this rejected amendment began, as St. 1967, c. 379
now begins, with the phrase: "until he has served. . . ."
112 P.D. 12
In the Allen case the Court further noted that its single justice who had
heard the case in the first instance had stated that if the rejected amendment
had been adopted, it would have been "clearly consistent" with an "alterna-
tive interpretation" proposed in a former Attorney General's opinion on the
matter, dated March 2, 1 966, but not accepted by the Court. That opinion
of the former Attorney General defined the "alternative interpretation" as
follows:
"... [ I ] n the event of violation of parole — good conduct deduc-
tions should not be calculated so as to authorize discharge of the
prisoner during the first six months after his return to the institu-
tion. This can be accomplished by suspending the calculation of
good conduct credits for the term which remains after the end of
the parole period until the six month period . . . has expired. If,
upon the calculation of credits at that time, the prisoner is enti-
tled to a sufficient reduction in sentence, he may of course be dis-
charged immediately; but he has at least suffered some penalty
for having violated the conditions of his parole."
It is my opinion, in the light of the foregoing background, that the
amendment added by St. 1967, c. 379 adopted the "alternative interpreta-
tion" in the former Attorney General's opinion.
On this analysis of the statute, I now turn to your questions. You ask:
"1) In applying the new amendment. Chapter 379, Acts of
1967, does the department require the individual to serve
six (6) months, unless the expiration of sentence is prior
to that time, in confinement before applying any good
conduct, or other deductions, as well as forfeitures of
good time, before computing the individual's discharge
date? (Emphasis in original.)
"2) Is the individual entitled to have a discharge date comput-
ed after his return on revocation of parole by applying all
the credits he had earned while confined prior to return to
imprisonment?
"3) What effect does the Commission's Bulletin 67-1 have on
Chapter 379, Acts of 1967?"
As to Question 1 , so far as it relates to good conduct deductions, my
answer is Yes. Other deductions are not affected by St. 1967, c. 379. For-
feitures of good conduct time are to be reflected in computation.
As to Question 2, my answer is Yes. This conclusion is supported by the
rejection in the Senate on June 7, 1967 of an amendment that would have
added to the 1967 amendment: "No deductions under this section shall be
retroactive." 1967 Senate Journal 1366, 1387.
As to Question 3, Bulletin No. 67-1 should be revised so as to delete the
provision in the third paragraph that states that good conduct credits are not
to be allowed for the six-month period beginning on the return of the
prisoner for violation of parole. As I have indicated above, such credits
are now allowable under St. 1967, c. 379 but crediting of them is suspended
until the six-month period has expired.
Very truly yours,
Elliot L. Richardson, Attorney General
P.D. 12 113
Number 37. October 10, 1967.
Honorable Leo L. Laughlin, Commissioner of Public Safety
Dear Commissioner Laughlin: — You have asked me to determine
whether certain inspectors in the Division of Inspection of the Department
of Public Safety (the Department) "... are classified as police officers in the
Commonwealth of Massachusetts."
You state that the personnel in question are state building inspectors,
district engineering inspectors and state elevator inspectors, all appointed
under G. L. c. 22, § 6, which provides that the Commissioner of Public
Safety "... may appoint, transfer and remove officers, inspectors, experts,
clerks and other assistants." Section 2 of c. 147 of the General Laws states
that "all officers and inspectors of the department [of public safety] shall
have and exercise throughout the commonwealth the powers of constables,
police officers and watchmen, except as to service of civil process."
It is my opinion that state building inspectors, district engineering inspec-
tors and state elevator inspectors appointed under G. L. c. 22, § 6 have, so
far as the proper performance of their official duties may require, the pow-
ers of police officers. Whether or not in a more general sense they can, as
you ask, "be classified as police officers" depends on the particular purposes
for which you would so propose to classify them. There may be personnel
statutes and various contexts in which categories of persons, merely because
they have the powers of police officers, would not necessarily qualify for a
"classification" as a police officer. Thus, without additional information I
cannot answer your question in its broadest sense, viz. whether or not for
every purpose the designated persons are "classified as police officers."
Very truly yours,
Elliot L. Richardson, Attorney General
Number 38. October 19, 1967.
Mrs. Helen C. Sullivan, Director of Registration, Department of Civil
Service and Registration
Dear Mrs. Sullivan: — By your letter dated October 2, 1 967 the Board
of Registration in Veterinary Medicine has requested my opinion on wheth-
er an applicant for registration as a veterinarian, who has failed an exami-
nation for licensure in Veterinary Medicine, may, on taking a re -examina-
tion, be examined only in the subjects that he originally failed. Your letter
stated:
"The Board has felt for some time that an applicant who has
passed the National Board examination, passed the State Board's
practical examination and shown good grades in several subjects,
should be allowed to take a re-examination in the subjects failed.
Such examination to be given as soon as possible after failure of
the first examination."
The subject of examinations for licensure in Veterinary Medicine is gov-
erned by the General Laws, c. 112, §§ 55 and 56, which provide in perti-
nent part:
114 P.D. 12
§ 55. "An applicant failing to pass an examination satisfactory to
the board may be re-examined upon payment of twenty-five dol-
lars for each appearance, at such time and place as the board
shall determine."
"56. "Examinations shall be in part in writing, shall be in Eng-
lish, and of a scientific and practical character. They shall include
the subjects of anatomy, surgery, physiology, animal parasites,
obstetrics, pathology, bacteriology, diagnosis and practice, thera-
peutics, pharmacology, veterinary dentistry and other subjects
throught proper by the board to test the applicants' fitness to
practice veterinary medicine." (Emphasis supplied.)
It is my opinion, based on the foregoing provisions, that the Board of Reg-
istration in Veterinary Medicine may not limit re -examinations to the sub-
jects which an applicant failed in a prior examination. While the statute
specifically allows re -examinations, it also prescribes the particular subjects
to be included in all examinations. In view of this prescription, the Board
may not lawfully limit an examination, even though it is a re -examination,
to only some of these subjects.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 39. October 23, 1967.
Honorable Crocker Snow, Director of Aeronautics
Dear Mr. Snow: — You have requested my opinion on the liability of
the Commonwealth for personal injuries and property damage arising from
accidents caused by aircraft operated by the Massachusetts Aeronautics
Commission. Your letter states:
"The Massachusetts Aeronautics Commission operates two
state owned aircraft, a small twin engined airplane and a helicop-
ter. These are flown both within and without the Commonwealth
by Commission pilots who are regular state employees. They are
used both for Commission business, inspecting airports, investi-
gating accidents, etc., and for the transportation of elected and
other state officials.
"It is, of course, possible that either of these aircraft could be
involved in an accident which would damage the property of an-
other, injure other people or injure the occupants or the crew of
the aircraft."
In the event of such an accident, you wish to know whether or not the
Commonwealth would be liable ( I ) for personal injuries and property dam-
age sustained by third persons and (2) for personal injuries inflicted upon
the occupants of the aircraft.
1 am of the opinion that the first part of your question must be answered
in the negative. "It is fundamental that the Commonwealth, along with its
duly constituted public agencies, cannot be sued for the torts of its officers,
agents or employees except by a clear manifestation of consent thereto by
statute." Smith v. Commonwealth. 347 Mass. 453, 455-456. No such legis-
P.D. 12 115
lative consent has been given for tort suits against the Commonwealth in
cases arising from the operation of its aircraft or other equipment. Such
suits may therefore be brought only against the operator.
This is not to say that operators of all state-owned equipment are left
completely unprotected. Where a claim is made against a state employee by
reason of his operation of a state -owned "motor or other vehicle/' the Leg-
islature, without actually consenting to a suit against the Commonwealth,
has nonetheless afforded a considerable measure of protection to the opera-
tor. Thus, G. L. c. 12, § 3B provides that the Attorney General shall, under
certain circumstances, "take over the management and defence" of a tort
action brought against an officer or employee of the Commonwealth "aris-
ing out of the operation of a motor or other vehicle owned by the Common-
wealth," and that the claim against him, within specified limits, "shall be
paid from the state treasury. . . ." Similar provision is made in G. L. c. 1 2, §
3C for the settlement and satisfaction of certain claims, not involving law-
suits against a state officer or employee, "arising out of his operation of a
motor vehicle or other vehicle owned by the Commonwealth. . . ."
However, the Legislature has made no provision for the assumption by
the Commonwealth of the tort liabilities of its aircraft operators — under
G. L. c. 12, §§ 3B and 3C or under any other statute of which I am aware.
Apart from a serious question as to whether an airplane or helicopter quali-
fies as a "vehicle" under G. L. c. 12, §§ 3B and 3C (which need not be an-
swered at this time), the absence of any existing appropriation of funds for
damages caused by aircraft means that no payment of such damages may be
made under those statutes in any event. Funds may be paid from the state
treasury under § 3B only "from such appropriation as may be made by the
general court for the purposes of this section . . ." and under § 3C only
"from such appropriation as may be made therefor. . . ." The only such ap-
propriation presently in effect has been made "for the settlement of certain
claims, as provided by law, on account of damages by cars owned by the
commonwealth and operated by state employees. . . ." (Emphasis supplied.)
St. 1967, c. 414, § 2, Item 0802-01 . Even if airplanes and helicopters were
to be regarded as "vehicles" for purposes of G. L. c. 12, §ij 3B and 3C, it is
clear that they are not "cars" and therefore not within the scope of the ap-
propriation item. Thus, no payments may be made under §§ 3B and 3C on
account of accidents involving Commonwealth aircraft.
I therefore conclude that the Commonwealth is not financially liable un-
der existing legislation, either directly or indirectly, to third persons for per-
sonal injuries or property damage caused by Commonwealth aircraft. Any
such liability would rest upon the operator of the aircraft (subject of course
to any outside insurance arrangements which may be in effect).
In answer to the second part of your question, I invite your attention to
G. L. c. 152 (the Workmen's Compensation Act), §§ 69-75 of which re-
quire the Commonwealth to compensate certain classes of state employees
"who receive injuries arising out of and in the course of their employment. .
. ." G. L. c. 1 52, § 69. Whether or not a particular occupant of an aircraft is
covered by workmen's compensation, of course, involves a determination of
fact, and can best be resolved through informal discussions with members of
my staff.
Very truly yours,
Elliot L. Richardson, Attorney General
116 P.D. 12
Number 40. October 26, 1967.
Dr. Richard W. Hale, Jr., Secretary, Records Conservation Board
Dear Doctor Hale: — Acting on behalf of the Records Conservation
Board, you have requested my opinion on certain legal aspects of a plan to
microfilm and then destroy certified copies of purchase orders submitted to
vendors by various state agencies. The certified copies are filed with the
Comptroller's Division pursuant to G. L. c. 7, § 14, which requires that "all
departments, offices, commissions and institutions authorized to make con-
tracts under which money may be payable from the treasury shall file with
the comptroller, before payment, certified copies thereof." When the certi-
fied copies are filed, the Comptroller's Division causes public funds to be
encumbered for the required payments.
Your letter states that the Comptroller's Division, in order to save storage
space and to increase efficiency, wishes to institute the practice of micro-
filming its copies of these purchase orders as they are recieved and destroy-
ing them immediately after the microfilm reproductions have been checked.
With reference to this proposal you have asked, in substance, the following
questions:
1 . May the Records Conservation Board authorize the Comptroller's
Division to destroy its certified copies of purchase orders in the regu-
lar course of business, immediately following their reproduction on
microfilm?
2. Would such microfilm reproductions be admissible in evidence in a
judicial or administrative proceeding to the same extent as the certi-
fied copies under G. L. c. 233, § 79E?
Question 1
In answer to Question 1 , I am of the opinion that the Records Conserva-
tion Board has sufficient power to authorize the Comptroller's Division to
destroy its copies of purchase orders in the manner proposed. General Laws
c. 30, § 42 provides in part as follows:
"... [The records conservation] board, after consultation with
the chairman of any board or commission or the head of any de-
partment or institution or a person designated by such chairman
or head may, either by its own motion or on the request of said
chairman or head, sell or destroy, from time to time, all records
in accordance with disposal schedules which shall have been sub-
mitted to said board and either approved or modified by said
board. Until such action shall have been taken all records shall
remain the property of the Commonwealth. . . ."
It seems clear that these documents are "records" within the meaning of
the above-quoted provision of G. L. c. 30, § 42, since the following defini-
tion of that term appears in the same section:
"As used in this section, the word 'records' shall mean all
books, papers, maps, photographs or other recorded information,
including public records as defined in section seven of chapter
four, regardless of physical form or characteristics, created or re-
ceived by any agency of the commonwealth or by any political
P.D. 12 117
subdivision thereof, in pursuance of law or in connection with the
transaction of its duties." (Emphasis supplied.)
Since, as previously stated, certified copies of purchase orders are "re-
ceived" by the Comptroller's Division "in pursuance of G. L. c. 7, § 14,
they are "records" as defined in G. L. c. 30, § 42. Hence, their destruction
may be authorized by the Records Conservation Board under that section
unless their preservation is required by some other statute.
Your letter suggests the possibility that the power to authorize the de-
struction of these records may be limited by G. L. c. 233, § 79E, which pro-
vides:
"If any business, institution, member of a profession or calling,
or any department or agency of government, in the regular course
of business or activity, has kept or recorded any memorandum,
writing entry, print, representation or combination thereof, of any
act, transaction, occurrence or event, and in the regular course of
business has caused any or all of the same to be recorded, copied
or reproduced by any photographic, photostatic, microfilm, mi-
crocard, miniature photographic, or other process which accu-
rately reproduces or forms a durable medium for so reproducing
the original, the original may be destroyed in the regular course
of business unless held in a custodial or fiduciary capacity or un-
less its preservation is required by law. Such reproduction, when
satisfactorily identified, shall be as admissible in evidence as the
original itself in any judicial or administrative proceeding wheth-
er the original is in existence or not and an enlargement or fac-
simile of such reproduction shall be likewise admissible in evi-
dence if the original reproduction is in existence and available for
inspection under direction of the court. The introduction of a re-
produced record, enlargement or facsimile, shall not preclude ad-
mission of the original." (Emphasis supplied.)
To be sure, the first sentence of § 79E is cast in terms of the power to
destroy records which have been reproduced, and the exceptions for a re-
cord "held in a custodial or fiduciary capacity" and for a record whose
"preservation is required by law" might be taken as imposing a restriction
on the powers of the Records Conservation Board with respect to docu-
ments falling into those categories. However, I do not believe this to be the
case. In my opinion § 79E does nothing more than state a rule of evidence,
and neither sanctions nor inhibits the destruction of any record per se.
Thus, while this statute might well determine the advisability of destroying
a particular record, it does not affect the power to do so.
It is therefore my opinion that if the Comptroller's Division microfilms
the certified copies of purchase orders issued by state agencies as they are
received by the Division, the Records Conservation Board may authorize
the immediate destruction of the certified copies.
Question 2
As indicated in my answer to Question 1 , the future admissibility in evi-
dence of microfilm reproductions of the records under consideration could
properly be a decisive factor in the deliberations of the Records Conserva-
tion Board regarding their proposed destruction. The issue raised in Ques-
tion 2, then, is this: Assuming that a certified copy of a particular purchase
118 P.D. 12
order would be admissible in a given proceeding, would a microfilm repro-
duction of the certified copy be admissible in lieu thereof?
Under G. L. c. 233, § 79E, quoted above, a microfilm of such a record,
prepared in the regular course of business, is admissible in evidence to the
same extent as the original* unless the original is "held in a custodial or fid-
uciary capacity or unless its preservation is required by law." Taken literal-
ly, every one of these restrictions would seem to describe the records which
the Comptroller's Division proposes to reproduce and thereby to deprive
the reproductions of the benefits of § 79E. Thus, they can be said to be held
in a "custodial" capacity, since the Comptroller's Division plainly has cus-
tody of them. They are also held in what amounts to a "fiduciary" capacity,
for all public officers are fiduciaries and all their public duties are per-
formed in a fiduciary capacity. Moreover, the preservation of these records
is "required by law" in that they may not be destroyed without the permis-
sion of the Records Conservation Board.
Still, I am of the opinion that the exceptions to the admissibility rule of §
79E were not intended to apply to records of this kind. If these exceptions
were given the broad interpretation suggested in the preceding paragraph,
every public document of every description would fall within all three and
no reproduction of any such document could ever be admitted in evidence
under § 79E. This could not have been the intention of the Legislature, for
the statute makes reference in the same sentence to the records of "any de-
partment or agency of government. . . ." Such an interpretation, moreover,
is contradicted by the titles of the act by which § 79E was inserted in the
General Laws in 1952 and those by which it was amended in 1955 and
1962: "An Act Relative to the Admissibility in Evidence of Business and
Public Records'' (St. 1952, c. 120; St. 1955, c. 125); "An Act Relative to
the Admissibility in Evidence of Certain Reproductions of Business and
Public Records'' (St. 1962, c. 90). Indeed, the very purpose of the most re-
cent amendment to § 79E (St. 1965, c. 661 ), as stated in the Special Report
of the Commissioner of Administration with reference to the bill on which
the amendment was based, was to facilitate the destruction of public rec-
ords. 1965 House Doc. No. 4077.
It follows that a more restrictive interpretation must be adopted for the
statutory language, "unless held in a custodial or fiduciary capacity or un-
less its preservation is required by law." Generally speaking, I think that the
first of these "unless" clauses has reference to a "custodial" or "fiduciary"
duty other than that owed by an employee to his employer. Public records
are, by definition, the property of the government, and the "custodial" or
"fiduciary" duty of a government oficial for their safekeeping runs only to
the government and to the general public. This is to be contrasted with the
situation in which records of private persons are entrusted to a government
official by their owner. The documents which the Comptroller's Division
seeks to reproduce and destroy are the property of the Commonwealth, and
its responsibility for them is a purely public one. Hence, I do not regard
these records as "held in a custodial or fiduciary capacity" for purposes of
G. L. c. 233, §79E.
'The word "original" as used in G. L. c. 233. ;! 79E, is somewhat ambiguous, since, in the present con-
text, it could refer either to the purchase order form actually delivered to the vendor or to the certi-
fied copy thereof tiled with the Comptroller's Division. However, the statute would make little sense
if the former interpretation were adopted. I therefore conclude, from a reading of the statute as a
whole, that the word "original" merely refers to the "memorandum, writing entry, print, representa-
tion or combination thereor" which is reproduced in accordance with S l^E.
P.D. 12 119
Nor do I think that any serious obstacle is presented by the second of
these limiting clauses: "unless its preservation is required by law." While
the preservation of such records is required until the Records Conservation
Board has authorized their destruction, there appears to be no law requiring
their preservation thereafter.
It is therefore my opinion that microfilm reproductions of the certified
copies of state -agency purchase orders filed with the Comptroller's Division,
prepared in the regular course of Business as the orders are received, would
be admissible in a judicial or administrative proceeding to the same extent
as the certified copies themselves, under G. L. c. 233, § 79E. I would em-
phasize, however, that such reproductions could be admitted in evidence in
a particular proceeding only if the certified copies themselves could be so
admitted, which, of course, would depend on various other rules of evidence
and on the circumstances under which their admission is sought.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 41. October 26, 1967.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District Com-
mission
Dear Commissioner Whitmore: — You have requested my opinion as
to the power of the Metropolitan District Commission (MDC) to sell or
lease certain land under its control to a private corporation. The land in
question is located on the Veterans of Foreign Wars Parkway in West Rox-
bury and forms a part of a larger tract which was acquired by the Common-
wealth through an order of taking adopted by the Department of Public
Works (DPW) in 1931. The taking was made pursuant to St. 1930, c. 420,
§§4 and 6, whereby the DPW was "directed to lay out and construct" what
is now the Veterans of Foreign Wars Parkway, and authorized to acquire
land therefor by eminent domain. Control of this land was transferred by
the DPW to the MDC in 1933 in accordance with St. 1930, c. 420, § 18,
which provided for such a transfer upon the completion of construction of
the Parkway.
Your office has informed me that certain of the land so transferred, abut-
ting upon the Parkway, is not needed for the purposes thereof and is now
surplus. You therefore seek my opinion on whether the MDC may sell the
surplus land to a private corporation, and, if not, whether it may lease the
same. Since I am of the opinion that the MDC, subject to the concurrence of
the Park Commissioners of the City of Boston, has the power to sell the
land, your question about leasing it requires no answer.
The power of the MDC to sell certain land under its control is conferred
by G. L.c. 92, § 85:
"The [metropolitan district] commission, with the concurrence
of the park commissioners, if any, in the town where the property
is situated, may sell at public or private sale any portion of the
lands or rights in land the title to which has been taken or re-
ceived or acquired and paid for by it for the purposes set forth in
sections thirty-three and thirty-five, and may, with the concur-
rence of such park commissioners, execute a deed thereof, with or
120 P.D. 12
without covenants of title and warranty, all in the name and be-
half of the commonwealth, to the purchaser, his heirs and assigns,
and deposit said deed with the state treasurer, together with a cer-
tificate of the terms of sale and price paid or agreed to be paid at
said sale, and, upon receipt of said price and upon the terms
agreed in said deed, he shall deliver the deed to said purchaser. . .
." (Emphasis supplied.)
While it is not immediately apparent that land acquired by the MDC under
St. 1930, c. 420 falls within the description contained in G. L. c. 92, § 85, a
careful examination of the latter statute convinces me that such is the case
and that land so acquired may be conveyed in accordance with § 85.
There can be little doubt that the land in question was "acquired ... for
the purposes set forth in sections thirty-three and thirth-five" of G. L. c. 92.
The second of the cited sections authorizes the MDC to "connect any way,
park or other public open space with any part of the towns of the metropoli-
tan parks district under its jurisdiction by suitable roadways or boulevards,"
and to "construct and maintain along, across, upon or over lands acquired
for such boulevards or for reservations, a suitable roadway or boulevard."
The land under consideration, though not acquired under G. L. c. 92, § 35,
was plainly acquired /or the purposes set forth in that section: the construc-
tion of "a parkway or boulevard" connecting certain public ways in Boston
and Brookline (both of which municipalities are within the Metropolitan
Parks District). St. 1930, c. 420, § 4. Moreover, the lands to be transferred
by the DPW to the MDC are characterized in St. 1930, c. 420, § 18, as
"parkways and/or boulevards. . . ."
It is less clear that we are dealing with "land the title to which has been
taken or received or acquired and paid for by [the MDC] . . . ." Strictly
speaking, the MDC never acquired title to this land but only control over it;
nor did the MDC actually pay for it, since all land damage payments were
presumably made before the MDC became involved. Thus, it might at first
seem that the powers under G. L. c. 92, § 85 are exercisable by the MDC
only with respect to land directly acquired by it, without the intervention of
any other state agency. But even in this more typical situation the MDC it-
self never acquires title to any land. Here, as in the case of the land ac-
quired under St. 1 930, c. 420, it is the Commonwealth which acquires and
retains title, with the MDC or DPW merely acting as its representative and
custodian in the transaction. It is significant that G. L. c. 92, § 85 provides
that a deed that the MDC may give under its provisions is to be given "in
the name and behalf of the commonwealth. . . ." Likewise, there is no such
thing as land which is "paid for" by the MDC; it is the Commonwealth
which pays for such land, with the State Treasurer — not the MDC or DPW
— acting as its disbursing agent. Again, it is significant that G. L. c. 92, §
85 provides that a deed given by the MDC under the statute is to be depos-
ited "with the state treasurer. . . ." It follows that a literal interpretation of
G. L. c. 92, i? 85 would exclude all land from its application and render the
section a nullity. If the section is to have any meaning, a more liberal inter-
pretation must be adopted.
Accordingly, 1 think that the clause defining the land to which G. L. c.
92, § 85 applies must be construed as if it read: "land under the control of
the MDC the title to which has been taken or received or acquired and paid
for by the commonwealth. . . ." The land in question falls within this de-
scription. Though it was for a brief period under DPW control, this was
P.D. 12 121
merely a temporary expedient to facilitate construction of the Parkway, and
can hardly be regarded as distinguishing this land in any significant way
from other boulevard land under MDC control. Another possible distinction
lies in the fact that this land was, pursuant to St. 1930, c. 420, § 10, paid
for in part by the Commonwealth and in part by the municipalities of the
Metropolitan Parks District. However, § 13 of the 1930 statute provided
that the municipal share of the cost "shall, in the first instance, be paid by
the commonwealth." In any event, the payment requirement of G. L. c. 92,
§ 85 was designed to exclude land acquired by gift or devise. See Op. Atty.
Gen., February 27, 1946, p. 90. I do not believe that the Legislature intend-
ed any more than that.
It is therefore my opinion that the MDC, with the concurrence of the
Boston Park Commissioners, may sell surplus land acquired on the Veter-
ans of Foreign Wars Parkway under St. 1930, c. 420 to a private corpora-
tion in accordance with G. L. c. 92, § 85.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 42. October 26, 1967.
Honorable Richard W. McLaughlin, Registrar of Motor Vehicles
Dear Registrar McLaughlin: — You have asked me to interpret cer-
tain provisions of G. L. c. 90, § 24, concerning periods of time during
which no new license or right to operate a motor vehicle may be issued to a
person whose license or right to operate has been revoked after conviction
of a motor vehicle violation.
Section 24 (2) (a) of G. L. c. 90 provides criminal penalties for reckless
driving; driving to endanger; driving on a bet or wager; racing or driving for
the purpose of making a record; leaving the scene of an accident after caus-
ing injury to a person or damage to property without making certain infor-
mation known; allowing a license to operate to be used by another; falsify-
ing an application for a license or registration; and using a motor vehicle
without authority. Section 24 (2) (b) provides for revocation by the registrar
of the license or right to operate of any person convicted of a violation of §
24 (2) (a). Section 24 (2) (c) reads as follows:
"The registrar, after having revoked the license or right to oper-
ate of any person under the preceding paragraph of this section,
in his discretion may issue a new license or reinstate the right to
operate to him, if the prosecution of such person in the superior
court has terminated in favor of the defendant, or, after an inves-
tigation or upon hearing, may issue a new license or reinstate the
right to operate to a person convicted in any court of the violation
of any provision of paragraph (a) of subdivision (2) of this sec-
tion; provided, that no new license or right to operate shall be is-
sued by the registrar to any person convicted of going away with-
out stopping and making known his name, residence, and the reg-
ister number of his motor vehicle after having, while operating
such vehicle upon any way or in any place to which the public has
a right of access, or any place to which members of the public
have access as invitees or licensees, knowingly collided with or
122 P.D. 12
otherwise caused injury to any person, or to any person convicted
of using a motor vehicle knowing that such use is unauthorized,
or to any person adjudged a delinquent child by reason thereof
under the provisions of section fifty-eight B of chapter one
hundred and nineteen, until one year after the date of his original
conviction or adjudication if for a first offense or until two years
after the date of any subsequent conviction or adjudication, or to
any person convicted of violating any other provision of para-
graph (a) of subdivision (2) of this section until sixty days after
the date of his original conviction if for a first offense, or one year
after the date of any subsequent conviction within a period of
three years. But the registrar, after investigation, may at any time
rescind the revocation of a license or right to operate revoked be-
cause of a conviction of operating a motor vehicle upon any way
or in any place to which the public has a right of access, or any
place to which members of the public have access as invitees or
licensees, negligently so that the lives or safety of the public
might be endangered." (Emphasis supplied.)
Your question, relating to the emphasized portion of G. L. c. 90, ^ 24 (2)
(c) is whether the phrase ". . . any subsequent conviction . . ." is confined to
a conviction for the same kind of act as that involved in the first conviction
or whether it includes a conviction for any of the acts enumerated in Section
24 (2) (a), other than leaving the scene of an accident after causing injury to
a person or using a motor vehicle without authority, hereinafter called "the
excepted offenses," which are dealt with in the clause immediately preced-
ing the emphasized provision beginning with the words: "to any person con-
victed of . . . ."
In my opinion the "subsequent conviction" need not be for the same kind
of offense as that involved in the first conviction. I note that the various
acts, other than the excepted offenses, encompassed by Section 24 (2) (a)
are treated therein as a single class, all being part of a single series of motor
vehicle convictions carrying the same punishment. Similarly, in Section 24
(2) (c) the Legislature grouped the various offenses in a single series, all
being united, without differentiation, in the general reference to "any other
provision of paragraph (a) of subdivision (2) of this section . . . ." Although
differences do, of course, exist among the acts that constitute the various of-
fenses within the series, these differences are, in my opinion, not sufficient
to prevent "any subsequent conviction" from referring to different offenses
within the same series. The common character and unified treatment of all
such offenses are, in my view, more significant than the details of the partic-
ular distinctions among them.
1 therefore answer your question by stating that in my opinion the phrase
"any subsequent conviction," to which you refer in Section 24 (c) (2) is not
limited to a conviction for the identical kind of offense as that involved in
the first conviction but rather includes any of the various offenses enumerat-
ed in the same series as that on which the subsequent conviction is based.
Very truly yours,
Elliot L. Richardson, Attorney General
P.D. 12 123
Number 43. October 27, 1967.
Dr. Owen B. Kiernan, Commissioner of Education
Dear Dr. Kiernan: — In your letter of September 20, 1967, you have
requested my opinion on whether you as Commissioner of Education have
the authority under G. L. c. 74, § 7 to approve the admission, at the thir-
teenth and fourteenth grade level, of a high school graduate to a vocational
school (or the taking of courses therein at that level) when the school is lo-
cated in a town in which the student does not reside. You further ask wheth-
er this approval would require you to assess the student's tuition and trans-
portation costs to the town of the student's residence as provided in G. L. c.
74, § 8.
I have been further informed that the particular vocational school gives
classes at both the high school level and the higher thirteenth and fourteenth
grade level.
A former Attorney General had occasion to render an informal opinion
on the responsibility, as between two towns, for payment of tuition when a
high school graduate of one town was admitted, at the high school level, to a
vocational school in another town. Op. Atty. Gen. October 28, 1960, page
70. That opinion held that, assumini^ that the Commissioner of Education
approved the admission under G. L. c. 74, § 7, the town of the student's
residence must, under G. L. c. 74, § 9, pay for his tuition. (The decision did
not have occasion to consider particular circumstances of the giving of the
Commissioner's approval.)
Your present request raises a different issue, namely, whether the Com-
missioner has the authority to approve the admission of a high school grad-
uate to the post-high school level, namely, the thirteenth or fourteenth grade
level (or the taking of courses at that level) in another town's vocational
school.
G. L. c. 74, § 7 reads as follows:
"Residents of towns in the commonwealth not maintaining ap-
proved independent distributive occupations, industrial, agricul-
tural, household arts and practical nurse training schools offering
the type of education desired, or children placed in such a town
by the commissioner of public welfare or by the trustees of the
Massachusetts training schools, may, upon the approval of the
commissioner under the direction of the state board, be admitted
to a school in another town. In making his decision, the commis-
sioner under the direction of the state board shall take into con-
sideration the opportunities for free vocational training where the
applicant resides, the financial status of such place, the age, sex,
preparation, aptitude and previous record of the applicant, and
other relevant circumstances."
No language in this section, or in any other related provision, indicates
any legislative intent to distinguish between residents who are high school
graduates and those who are not. Nor is there any language in either G. L.
c. 74, § 1 (which contains statutory definitions applicable to vocational edu-
cation) or § 7 which would warrant a distinction being made between ad-
mission to the twelfth grade and admission to the thirteenth grade.
My answer to your first question, then, assuming that town of the stu-
124 P.D. 12
dent's residence does not maintain a vocational school offering the type of
education desired is that the Commissioner, under the direction of the
Board of Education, has the power under G. L. c. 74, § 7 to approve the
application in question.
This being the case, the provisions of G. L. c. 74, § 8 and § 8A clearly
apply:
Section 8
"A town where a person resides who is admitted to the school of
another town under section seven shall pay a tuition fee to be
fixed by commissioner under the direction of the state board, and
in default of payment shall be liable therefor in contract to such
other town."
Section 8 A
"A town where a person resides who is admitted to a day school
in another town under section seven, shall, through its school
committee, when necessary, provide for the transportation of such
person, and shall, subject to appropriation be entitled to state
reimbursement from the tax on income to the extent of fifty per
cent of the amount so expended; . . . provided, further, that no
transportation shall be provided for, or reimbursement made on
account of, any pupil who resides less than one and one half miles
from the school which he attends."
Under these statutes the town of the student's residence must pay for tui-
tion, if the student's application is approved under Section 7, and must fur-
ther pay for transportation costs (50% of which will be reimbursed by the
Commonwealth under Section 8A) assuming the student lives more than
one and one half miles from the school.
I wish to point out, however, that this opinion should not be construed as
indicating in any way that the Commissioner of the Board of Education is
required to approve an application made under G. L. c. 74, § 7. Section 7 is
discretionary, not mandatory, and provides that "in making his decision, the
commissioner, under the direction of the state board shall take into consid-
eration the opportunities for free vocational training where the applicant re-
sides, the financial status of such place, the age, sex, preparation, aptitude
and previous record of the applicant, and other relevant circumstances."
Very truly yours,
Elliot L. Richardson, Attorney General
Number 44. October 30, 1967.
Honorable Edward J. Ribbs, Conunissioner of Public Works
Dear Commissioner Ribbs: — You have requested my opinion whether
St. 1967, c. 535 affects the letting of contracts for the demolition of build-
ings taken by eminent domain incident to the construction of highways. You
have also asked whether a demolition contractor doing work in excess of
$50,000 must be prequalified under G. L. c. 29, J? 8B.
P.D. 12 125
As for your first question, 1 begin by noting that G. L. c. 149, § 44A,
which St. 1967, c. 535 amends, was inserted into the General Laws by St.
1 939, c. 480. Applicable to contracts for "the construction, reconstruction,
alteration, remodeling, repair or demolition of any public building," within
certain estimated costs, the act established particular procedures to ensure
fair competition among bidders for such contracts. Subsequent amendments
made varigus changes in these procedures but the words "public building"
remained intact until the enactment of St. 1 967, c. 535. That act deleted the
word "public."
Contracts for highway construction have been governed by G. L. c. 30, §
39M, inserted by St. 1963, c. 842, § 1, which applies to contracts "for the
construction, reconstruction, alteration, remodeling or repair of any public
work . . . ." Subsection (a) of § 39M excludes from its application "the
award of any contract subject to the provisions of sections forty-four A to
forty-four L, inclusive, of chapter one hundred and forty-nine and every
such contract shall continue to be awarded as provided therein." Your letter
infers that your Department has not previously regarded this last provision
as excluding contracts for the demolition of public buildings incident to
highway construction.
It is my opinion that the correct method of determining the relationship
of G. L. c. 149, § 44A and G. L. c. 30, § 39M, so far as the demolition of
buildings in connection with roadbuilding is concerned, is to ascertain
whether the contractor's obligation to perform the demolition work is (1)
only an incidental provision of a larger contract to build a road, or is in-
stead (2) the subject of a separate contract for demolition only, even though
the demolition under the separate contract may be incidental to a road
building project (as distinguished from a contract to build a road). The ap-
plication of G. L. c. 30, § 39M does not depend on whether the buildings to
be demolished pursuant to incidental provisions of a roadbuilding contract
are public or private. And the application of G. L. c. 149, § 44A does not
depend on whether the buildings to be demolished under a demolition con-
tract are being removed as part of a roadbuilding project. The decisive test
in each case is rather the essential nature of the particular contract: (1)
roadbuilding, with demolition as an incidental feature; or (2) demolition
only.
Prior to the 1967 amendment of G. L. c. 30, § 39M, the term "public
building" therein implied that there existed a possible distinction between
public and private buildings, unless perhaps all buildings owned by the
Commonwealth could be regarded at "public," whatever their particular use
might be. The 1967 amendment appears to have been designed simply to
eliminate any doubts that may have existed in this regard. I might add, more-
over, since a memorandum that accompanied your letter touches on the
problem, that for purposes of applying the dollar limitation of $5,000 in
contracts of the Commonwealth under the foregoing provision, the total
contract price, not the unit prices for demolishing particular buildings, is
controlling.
In summary, my answer to your first question is that St. 1967, c. 535
made only a minor clarifying amendment to G. L. c. 149, § 44A and made
no significant change in the relationship of that provision to G. L. c. 30, §
39M, as I have defined that relationship.
I turn now to your question as to whether a demolition contractor doing
126 P.D. 12
work under a contract for more than $50,000 has to be "prequalified" under
the provisions of G. L. c. 29, § 8B. That section requires, among other
things, that "any person proposing to bid on any work, excepting the con-
struction, reconstruction, repair or alteration of buildings, to be awarded by
the department of public works" shall submit a sworn statement of his qual-
ifications to do the work. The Department then rates the bidder according to
the class and aggregate amount of work that he is eligible to perform. No
filing is required if the aggregate amount of the work of a bidder with the
Department, including the amount of his proposal, is less than $50,000.
It will" be noticed that the provision quoted just above does not exempt
the demolition of buildings. It follows that if a bidder on a contract for the
demolition of a building passes the $50,000 level, he must comply with the
requirements of G. L. c. 29, § 8B.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 45. November 3, 1967.
Honorable Richard E. McLaughlin, Registrar of Motor Vehicles
Dear Registrar McLaughlin: — In two separate letters dated August
21,1 967 you have asked for my opinion whether certain records must be
made available for the inspection of any person during reasonable business
hours. Public records are defined in G. L. c. 4, § 7, twenty-sixth, as:
". . . any written or printed book or paper ... of the common-
wealth . . . which is the property thereof, and in or on which any
entry has been made or is required to be made by law, or which
any officer or employee of the commonwealth . . . has received or
is required to receive for filing . . . ."
Under G. L. c. 66, § 10, public records must be open to public inspection
during reasonable business hours.
First, you ask whether abstracts of court records forwarded to the Regis-
trar by all courts of the Commonwealth pursuant to G. L. c. 90, § 27 must
be open to public inspection. General Laws c. 90, § 27 provides:
"A full record shall be kept by every court of every case in which
a person is charged with a violation of any statute, by-law, ordi-
nance or regulation relating to the operation or control of motor
vehicles . . . and an abstract of such record shall be sent forthwith
by the court to the registrar. Said abstracts shall be made upon
forms prepared by the registrar, and shall include all necessary
information as to the parties to the case, the nature of the offence,
the date of the hearing, the plea, the Judgment and the result; and
every such abstract shall be certified by the clerk of the court as a
true abstract of the record of the court. The registrar shall keep
such records in his main office . . . ."
It is my conclusion that these abstracts of court records are public records
within the meaning of G. L. c. 4, § 7, twenty-sixth. The courts are required
to send the abstracts to the Registrar on forms he provides and they must be
P.D. 12 127
kept on file at his main office. The abstracts are plainly records the Regis-
trar "is required to receive for filing" and although useful in the operation
of his office, are not limited to that purpose. Since they may also be useful
to the general public, I regard them as open to public inspection under G.
L. c. 66, § 10. See Lord v. Registrar of Motor Vehicles, 347 Mass. 608,
611. Support for this conclusion is found in the requirement of G. L. c. 90,
§ 27, quoted above, requiring the abstracts to be kept in the Registrar's
main office, as distinguished, it seems, from local offices. Further, since the
court records themselves appear to be open to public inspection in court-
houses, the abstracts of the records in the hands of the Registrar should not
be denied to the public.
I do not believe that the legislative history of G. L. c. 90, § 27 requires a
different result. G. L. c. 90, § 27 (as amended through St. 1953, c. 570, § 3)
provided:
"The registrar shall keep such records [court abstracts] in his
main office, and they shall be open to the inspection of any per-
son during reasonable business hours.^' (Emphasis supplied.)
St. 1961, c. 592, § 1 (entitled "An Act Relative to Summonses for Viola-
tions of the Motor Vehicles Laws, Requiring Filing Thereof and Providing
for an Audit System in Connection Therewith") completely changed c. 90, §
27. The main purpose of the change was to attempt to establish a "no fix"
system of issuing traffic citations. While St. 1961, c. 592, § 1 did incorpo-
rate the record keeping provisions of the prior law, it deleted the phrase,
"they shall be open to the inspection of any person during reasonable busi-
ness hours" and it relegated the record keeping provisions to a minor part
thereof.
St. 1962, c. 700 amended the section, again making certain minor
changes not here relevant. St. 1962, c. 789 (the current law) changed the
section completely, adopting the prior G. L. c. 90, § 27 (as amended
through St. 1953, c. 570, § 3), with one important exception that I have al-
ready noted, namely, the deletion of the phrase requiring that court records
be made open to public inspection. The provisions for a "no fix" system of
issuing traffic citations were changed significantly and made a part of a new
chapter, G. L. c. 90C.
It is my opinion that the enactment in 1 962 of the present version with-
out the phrase, "they shall be open to the inspection of any person during
reasonable business hours," does not manifest a legislative intention to keep
court abstracts on file in the registry confidential. Compare Mardman v.
Collector of Taxes of North Adams, 317 Mass. 439, 442-445. I reach this
conclusion in the light of the positive mandate of G. L. c. 66, § 10 and the
fact that the deletion was only a minor part of a complete statutory revision.
It may be that in the light of judicial interpretation (see Lord v. Registrar of
Motor Vehicles, 347 Mass. 608,) the phrase was thought to be superfluous.
Second, you ask whether cancellation notices of motor vehicle liability
policies sent to the Registrar pursuant to G. L. c. 1 75, § 11 3A must be open
to public inspection. General Laws c. 175, § II 3A provides in part that
neither the insurer nor the insured may cancel a motor vehicle liability poli-
cy,
". . . unless written notice thereof is given by the party proposing
cancellation to the other party giving the specific reason or rea-
128 P.D. 12
sons for such cancellation and to the registrar of motor vehicles in
such form as he may prescribe . . . ."
General Laws c. 90, § 34H provides in part that upon receipt of such notice
the Registrar,
"shall revoke the registration of such motor vehicle on the effec-
tive date of the cancellation as specified in such notice unless not
later than two days prior to such effective date the registrar shall
have received a new certificate covering the same motor vehicle.
The registrar shall, forthwith upon receiving written notice in
conformity with said section one hundred and thirteen A from an
insurance or surety company purporting to cancel such a policy
or bond issued or executed by it, give written notice to the owner
of the motor vehicle covered by said policy or bond that the regis-
tration thereof will be revoked as of the final effective date of the
cancellation as specified in the notice given by such company in
case the owner does not file a complaint . . . that he is aggrieved
by the issue of such notice, or as specified in an order of the
board of appeal on motor vehicle liability policies and bonds af-
firming such cancellation ... in case the owner does not claim an
appeal from such order, or as specified in a decree of the superior
court or a justice thereof affirming such cancellation on such ap-
peal, or as specified in such a decree ordering a cancellation of
such a policy or bond after its reinstatement by said board of ap-
peal, unless not later than two days prior to such effective date as
finally specified the registrar shall have received a new certificate
covering the same motor vehicle."
Thus, written notice of cancellation of a motor vehicle policy must be sent
to the Registrar before cancellation is valid, and presumably the Registrar
must keep the notice in the files at least until the insured exhausts his appeal
rights under G. L. c. 175, § 11 3D or until the registration is revoked.
In my opinion your question is similar to that before the court in Lord v.
Registrar of Motor Vehicles, 347 Mass. 608. In that case it was held that
accident reports which were required to be sent to the Registrar under G. L.
c. 90, § 26 on a form approved by him were "public records." As in this
case, the statute as it then read* did not specifically provide that the reports
must be kept on file or that they were to be open to public inspection. The
court nevertheless concluded that the reports were public records "because
they are reports which the registrar 'is required to receive for filing,' " (Id.
at 611) and because there were public policy reasons in support of disclo-
sure. Although the policy reasons in the present case might not be as urgent
as in Lord, I believe that there are significant reasons for public disclosure
here. For example, if a person is injured in an automobile accident and the
insurer of the person causing the accident claims that the insurance had
been canceled, it would be important for the accident victim to determine if
there was sufficient notice of cancellation. See, e.g., Greenherg v. Flaherty,
306 Mass. 95, in which the notice was found to be insufficient.
I have examined the sample copies of notices of cancellation which you
have provided. They state the name and address of the insured and the in-
surer, the policy number, the registration number of the car insured, the
'''Although since amended, the statute has. so far as material herein, been changed back to its original
form. See St. 1965, c. 664.
P.D. 12 129
effective date and the reasons for cancellation. G. L. c. 90, § 341 requires
the registrar to furnish upon request the name of the insurance company
and the registrant of a particular motor vehicle. If it is in the public interest
to require such disclosure, it must also be in the public interest to permit
disclosure of information that would indicate whether the insurance is still
in force. The fact that the notice of cancellation also contains the reasons
for cancellation and may apply to noncompulsory as well as compulsory
coverage does not require a different result. Nothing in the notice indicates
the amount of coverage.
Accordingly, in answer to your second question, I conclude that a written
notice of cancellation of a motor vehicle liability policy is a report that the
Registrar "is required to receive for filing" and therefore open to public
inspection under G. L. c. 66, § 10.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 46. November 3, 1967.
Honorable L. L. Laughlin, Commissioner, Department of Public Safety
Dear Commissioner Laughlin: — You have requested my opinion
about the proper interpretation of G. L. c. 262, § 53C, as amended by St.
1967 c. 286, which provides:
"Any police officer, on duty at night or on vacation, furlough or
on a day off, who attends as a witness for the commonwealth in a
criminal case pending in a district court, including the municipal
court of the city of Boston, or any juvenile court, or the superior
court, may, in lieu of the witness fee to which he would otherwise
be entitled under section fifty-three, be granted such compensato-
ry time off as shall be equal to the time during which he was in
attendance at such court, but in no event shall less than three
hours compensatory time off be granted him or, if such additional
time off cannot be given because of personnel shortage or other
cause, he shall, in lieu of said witness fee, be entitled to additional
pay for the time during which he was in attendance at such court,
but in no event shall he receive less than three hours additional
pay."
According to your letter, the Director of Accounts interprets this statute
as forbidding the payment of any witness fees to police officers in criminal
cases, and has notified at least one county treasurer that all such payments
are to cease as of August 22, 1967. Your letter indicates that detective lieu-
tenant inspectors of your Department are being denied witness fees as a re-
sult of this directive, and you seek my advice as to the legality of this proce-
dure.
In my opinion G. L. c. 262, § 53C does not apply to witness fees of de-
tective lieutenant inspectors in your Department or to other state police offi-
cers. While the statute speaks of "any police officer" who fulfills certain
conditions, it must be read, I believe, as containing an implied exception for
state police officers.
130 P.D. 12
The principal statute whereby police officers are entitled to witness fees is
G. L. c. 262, § 53, which provides that "any police officer, ... on duty at
night, on vacation, furlough or on a day off, who attends as a witness in a
criminal case pending in a district court, including the municipal court of
the city of Boston, or in a juvenile court, including Boston juvenile court,
shall be allowed a witness fee . . . ." Thus, the scope of § 53 appears to be
identical to that of § 53C. This is underscored by an almost word-for-word
identity of language in the opening portions of the two sections. Moreover,
>j 53C provides that the compensatory time off or additional pay which may
be granted to a ''police officer" thereunder shall be "in lieu of the witness
fee to which he would otherwise be entitled under section fifty-three . . . ."
(Emphasis supplied.)
A state police officer, however, is not entitled to a witness fee under § 53.
Despite the seemingly all-inclusive wording of that section ("any police offi-
cer"), special provision is made in G. L. c. 262, § 53B for the payment of
witness fees to "any officer of the division of state police . . . ." The cir-
cumstances under which a state police officer is entitled to a witness fee pur-
suant to § 53B differ in certain respects from those set forth in ^§ 53 and
53C. These factors led a former Attorney General to the conclusion that §
53 does not apply to state police officers. See Report of the Attorney Gener-
al for the year ending June 30, 1959, p. 42. Nothing has since occured to
change the correctness of that ruling. Since the application of ^ 53C can be
no broader than that of § 53, it follows that i^ 53C does not apply to state
police officers.
I am therefore of the opinion that detective lieutenant inspectors and oth-
er state police officers in your Department cannot properly be denied wit-
ness fees by reason of G. L. c. 262, § 53C.
Your question, of course, is a rather specialized one, and is answered, I
believe, by the conclusion stated above. This conclusion, however, does not
answer the numerous inquiries about G. L. c. 262, § 53C which this Office
has received from municipal police officers and local officials. While it is
not customary for an Attorney General to issue opinions on matters that do
not directly concern the responsibilities of state agencies, the diversity of in-
terpretation being given the statute has created a problem of state-wide im-
portance. I have therefore decided to go beyond the question you have
raised and present my views on other controversial aspects of G. L. c. 262,
§ 53C. It is my hope that these views will bring about consistent application
of the statute throughout the Commonwealth.
FIRST, the statute does not require any police officer to waive any wit-
ness fee, or authorize any court or public official to require him to do so,
hut leaves this to the decision of the individual officer himself As previous-
ly indicated, the circumstances under which a police officer (other than a
state police officer) is entitled to a witness fee are detailed in G. L. c. 262, §
53, and are identical to the circumstances under which he may be granted
compensatory time off or additional pay in lieu of a witness fee pursuant to
G. L. c. 262, i^ 53C. Thus, if j:^ 53C were interpreted as denying an officer
his witness fee or as authorizing such denial, i:j 53 would be largely vitiated.
The only reference in i^ 53C to ^j 53 is the phrase "in lieu of the witness fee
to which he would otherwise be entitled under section fifty-three . ..." I do
not think that such a casual reference to the earlier section can properly be
read as amending or repealing it. Hence, I conclude that the officer's right
to his witness fee remains unimpaired.
P.D. 12 131
SECOND, an officer who accepts a witness fee for appearing in court on
a particular day is ineligible to receive either compensatory time off or ad-
ditional pay for that appearance. Section 53C provides that an officer may
receive the benefits described therein "in lieu of his witness fee but not
otherwise.
THIRD, the statute does not necessarily require any police department to
grant compensatory time off or additional pay to its officers in lieu of wit-
ness fees. Section 53C says that a police officer qualifying thereunder "may
... be granted such compensatory time off ... ." (Emphasis supplied.) The
use of the word "may" convinces me that the Legislature intended the stat-
ute to be permissive rather than mandatory. To be sure, § 53C goes on to
provide that if compensatory time off cannot be given, the officer "shall . . .
be entitled to additional pay . . . ." This apparent contradiction between the
two clauses, in my opinion, must be resolved by reading the "shall be enti-
tled" clause as operative only after the department's election to invoke the
"may be granted" clause. That is, //the officer qualifies under § 53C, and //
his police department awards the compensatory time off which "may ... be
granted" thereunder to officers waiving their witness fees, and //such time
off cannot be given in a particular case, then and only then the officer "shall
... be entitled to additional pay . . . ."
FOURTH, an officer who waives a witness fee for appearing in court on
a particular day is entitled to compensatory time off or additional pay if he
is eligible under the statute and if ordinances, by-laws, rules, regulations or
orders so provide. For example, if an officer qualifying under § 53C has
been induced to waive the fee by the existence of a lawful regulation issued
by the chief of his police department providing that the statutory benefits
are to be granted to an officer so doing, the officer thereby acquires a legal
right to time off or additional pay, as the case may be. He is not, however,
entitled to choose between compensatory time off and additional pay. Sec-
tion 53C provides for additional pay instead of compensatory time off only
"if such time off cannot be given because of personnel shortage or other
cause . . . ." Any decision that such time off cannot be given must necessari-
ly be made by the police department or by higher authority, rather than by
the individual officer.
FIFTH, the amount of compensatory time off or additional pay granted
to a police officer under the statute is measured by the titne during which he
was in court, but must be equal to at least three hours time or pay, as the
case may be. Thus, if the officer is given time off, such time off shall be
equal to the time spent in court or three hours, whichever is greater; and if
he is given additional pay, he shall be paid for the time he spent in court or
three hours, whichever is greater.
SIXTH, the statute applies in every municipality of the Commonwealth,
but its implementation depends on local action. When § 53C was inserted in
the General Laws by St. 1955 c. 223, § 1 , the following provision appeared
in § 2 of the same Act:
"This act shall take full effect in a city having a Plan E form of
city charter by the affirmative vote of a majority of the members
of the city council, in other cities by vote of the city council, sub-
ject to the provisions of its charter, and in a town by vote of the
voters voting thereon at a town meeting, but not otherwise."
While ij 2 of the 1955 Act was not expressly repealed by the 1967 amend-
132 P.D. 12
ing legislation, it relates only to "this act" (i.e., St. 1955 c. 223) and not to
the 1967 statute (St. 1967 c. 286) whereby § 53C was stricken from the
General Laws and reinserted in a new form. Thus, St. 1955 c. 223, § 2 has
no application to § 53C in its present form and may for all practical pur-
poses be treated as repealed. See Attorney General v. Goldberi^, 330 Mass.
291 . This is not to say that the benefits of § 53C must be granted in every
municipality, but only that they may be granted without the action of the
city council or town meeting which was required by § 2 of the 1 955 statute.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 47. November 7, 1967.
The Honorable Cleo F. Jaillet, Commissioner, Department of Corpora-
tions and Taxation
Dear Commissioner Jaillet: — You have asked me to interpret certain
provisions of the General Laws concerning municipal finances.
You state that:
"At a special town meeting held on May 22, 1967 by the town of
Abington, the warrant included Article 14 which reads as
follows:
To see if the Town will vote to construct a swimming area,
complete with all necessary sanitary facilities, at Island
Grove Park and Pond in the 'Cove\ so called, and borrow,
transfer from available funds and/or raise and appropriate
Fifty Thousand ($50,000.00) Dollars to the Conservation
Fund, to be expended therefrom by the Conservation Com-
mission for the purposes of this Article.'
"The vote adopted by the town meeting under this article was as
follows:
'Voted, to construct a swimming area, complete with all the
necessary sanitary facilities, at Island Grove Park and Pond
in the 'Cove', so called, and that we raise and appropriate
Five Thousand ($5,000.00) Dollars and borrow, for a per-
iod of four years the sum of Forty-five Thousand
($45,000.00) Dollars; said sums to the Conservation Fund,
to be expended by the Conservation Commission for the
purposes of the Article.'
"The town clerk has certified that there was a standing vote of
430 'Yeas' and 77 'Nays.' "
You further state that town notes prepared by the Town Treasurer of
Abington pursuant to authority of the aforesaid vote have been submitted to
the Director of Accounts in the Bureau of Accounts within your Depart-
ment for certification; and under G. L. c. 44, § 24, the Director of Accounts
must, before certifying the notes, ascertain if the laws relating to municipal
indebtedness have been complied with, and whether the proceeds of the
notes are to be used for the purpose specified in the vote authorizing the
loan.
P.D. 12 133
You have enclosed a brochure which gives a short description of the pro-
posed development. It will consist of a swimming area and associated facili-
ties in a small cove on Island Grove Pond in Island Grove Park, which is
owned by the Town of Abington. An earth dike will be constructed between
the swimming area, which will have a surface area of about 43,000 square
feet, and the remainder of the pond. The swimming area will be excavated
and filled with clear sand, and water will then be pumped into it from a
nearby well. A bath house and sanitary facilities will also be constructed.
You have requested my opinion on the following questions:
" 1 . Is this project, as voted by the town meeting, 'to construct a
swimming area,' and as further described in the aforementioned
brochure, a swimming pool within the meaning of Clause (2B) of
Section 7 of Chapter 44.
"2. If your answer to Question No. 1 is in the negative, is the
vote adopted under Article 1 4 in proper form to allow incurring
of debt under any statutory provision and, if so, what statute and
in what amount.
"3. If your answer to either Question No. 1 or Question No. 2
is in the affirmative, may the proceeds from such a loan be min-
gled in the conservation fund with moneys appropriated under the
aforementioned Clause (5 1 ) of Section 5 of Chapter 40."
Section 5 of Chapter 40 of the General Laws sets forth the purposes for
which a town may appropriate money. Subsection 25A authorizes appropri-
ations "For acquiring land for, and the establishment, maintenance and op-
eration of bathing beaches and swimming pools for recreation and physical
exercise . . . ." Section 7 of Chapter 44 states that within the debt limit set
by G. L. c. 44, v^ 10, cities and towns may borrow money for certain pur-
poses and for specified periods of time. Among the permitted purposes
[Subsection 2B] is ". . . the construction of an outdoor swimming pool on
land owned by the city or town . . . ."
Your first question asks whether the proposed development is a "swim-
ming pool" within the last quoted subsection. On the basis of the facts that
you have submitted, I am of the opinion that one could reasonably say that
the development will be a "swimming pool." Although the feature most
commonly associated with such a facility is an artificially constructed tank,
it is my opinion that the term is not necessarily so limited. In my view a
"swimming pool" may also include any compact and artificially constructed
swimming area, such as that proposed in Abington, which is bounded by a
closed perimeter and is filled by water supplied from an outside source.
In your request for my opinion, you state that no question is raised as to
the construction of the bath house, its original equipment, and other equip-
ment for the project.
In view of my foregoing answer to your first question, no answer to your
second question is required. As for your third question, I turn to G. L. c.
40, v^ 5, subsection 51, to which your question refers. That subsection au-
thorizes a city or town to appropriate money "[f]or the establishment and
maintenance of a conservation commission." Subsection 5 1 also provides
that a city or town may appropriate money in any year to a conservation
fund of which the treasurer shall be custodian. After prescribing how the
134 P.D. 12
fund is to be invested, subsection 5 1 concludes by stating, "Monies in the
fund may be expended by said commission for any purpose, other than a
taking by eminent domain, authorized by section eight C." This last cited
section [of chapter 40] authorizes a city or town to establish a conservation
commission "for the promotion and development of the natural resources
and for the protection of watershed resources of said city or town." It also
defines in some detail the composition, powers, and duties of such a com-
mission. Among its powers is the power to acquire "such land or water . . .
as may be necessary to acquire, maintain, improve, protect, [and] limit the
future use of or otherwise conserve and properly utilize open spaces and
other land and water areas . . . ."
Although the question is not free from doubt, I am of the opinion that the
proposed Abington swimming pool may properly be regarded as a project
which the Conservation Commission may execute under the foregoing pow-
ers granted to it by G. L. c. 40, i^j 8C. Accordingly, I answer your third
question: Yes.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 48. November 13, 1967.
Dr. Martin J. Lydon, President
Dear Dr. Lydon: — You have requested my opinion as to the validity of
Article 3 of the bylaws adopted by the Board of Trustees of Lowell Tech-
nological Institute. This article reads as follows:
"Article 3. Meetings: Regular meetings of the Board of Trustees
shall be held at the order of the Chairman of the Board and shall
be held at least once during each of the four quarters of the year.
Special meetings may be called at other times by the Clerk upon
order of the Chairman or any three members of the Board, or as
otherwise provided by law.
"Notices giving the time and place of any meeting shall be mailed
to each member at least seven calendar days before the date of
said meeting.
"Five members present at any meeting shall constitute a quorum
for the transaction of any business." (Emphasis supplied.)
More specifically, you ask whether G. L. c. 4, § 6, paragraph 5, or any
other provision of law, requires that official acts of the Board of Trustees
shall be based upon a majority vote of the full Board of seventeen Trustees
appointed under G. L. c. 15, § 24, or whether its statutory authority may
instead be exercised by a majority of a quorum of five established by its
bylaws.
General Laws Chapter 4, Section 6 provides:
"In construing statutes the following rules shall be observed, un-
less their observance would involve a construction inconsistent
with the manifest intent of the lawmaking body or repugnant to
the context of the same statute:
:■:: * *
". . . Fifth, words purporting to give a joint authority to, or direct
P.D. 12 135
any act by, three or more public officers or other persons shall be
construed as giving such authority to, or directing such act by, a
majority of such officers or persons."
I am of the opinion that this provision has been rendered inapplicable to
the Board of Trustees of Lowell Technological Institute by G. L. c. 75A, §
7 which, in relevant part, reads: "Notwithstanding any other provision of
law to the contrary, except as herein provided, the trustees may adopt,
amend, or repeal such rules and regulations for the government of the insti-
tute, for the management, control and administration of its affairs, for its
faculty, students and employees, and for the regulation of their own body,
as they may deem necessary, and may impose reasonable penalties for the
violation of such rules and regulations." (Emphasis supplied.)
In the light of the foregoing provision, which I regard as displacing G. L.
c. 4, § 6, paragraph 5, in relation to the Board of Trustees of Lowell Tech-
nological Institute, I am of the opinion that the quorum provisions of the
bylaw in question are valid.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 49. November 14, 1967.
Mrs. Mabel A. Campbell, Acting Director of Civil Service
Dear Mrs. Campbell: — You have requested my opinion as to the pow-
er of the Director of the Division of Employment Security to appoint a
"confidential secretary" under G. L. c. 30, >j 7, which provides:
"Each officer, board and commission having supervision and con-
trol 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 stand-
ardization, 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 reg-
istration 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 provisions of chapter thirty-one."
Your letter calls attention to my opinion of June 19, 1967 (66/67 A. G.
No. 1 22), in which I advised the then Director of Civil Service "that the
powers conferred in G. L. c. 30, i^ 7 have at all times been exercisable only
by the heads of the twenty state departments authorized by the 66th
Amendment [to the Massachusetts Constitution] and by the other agency
heads enumerated in i:? 7." Since the Director of the Division of Employ-
ment Security does not fall into either of these categories, you state that you
are unable to reconcile this conclusion with an opinion issued in 1 949 by
the then Attorney General, Francis E. Kelly, advising the Director of the
Division of Employment Security that he might lawfully appoint a "confi-
dential secretary" under G. L. c. 30, ^^ 7. Report of the Attorney General
for the Year Ending June 30, 1949, p. 75.
136 P.D. 12
The agency for which a "confidential secretary" was sought when I ren-
dered the opinion of June 19, 1967 was Lowell Technological Institute
rather than the Division of Employment Security. It was therefore unneces-
sary at that time for me to adopt any position with respect to the 1 949 rul-
ing and I so stated. Now that the question is squarely raised, I am con-
strained to advise you that I cannot concur in the 1 949 result.
In thus advising you that the Director of the Division of Employment Se-
curity does not share in the powers conferred upon department heads by G.
L. c. 30, § 7, I would emphasize that I am by no means foreclosing the pos-
sibility that he may have equivalent powers under some other statute. In all
probability there are some state agencies which, though not qualifying un-
der § 7, could appoint what amounts to a "confidential secretary" under
their own enabling legislation. The question of whether the Division of Em-
ployment Security is such an agency can, of course, be definitively answered
only after a study of the many statutes concerning that Division.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 50. November 14, 1967.
Honorable John J. Droney, District Attorney for the Northern District
Dear District Attorney Droney: — You have requested my opinion
on the following questions relative to the powers of local police:
"1. Can local (city or town) police investigate crimes on state -owned
property?
"2. If local police are investigating a crime not committed on state
property, may local police, in pursuance of their investigation, en-
ter the state property and talk with persons on the state property,
whether personnel or patients, or must the State Police take over
every phase of an investigation if entry on state property is
necessary?
"3. If State Police must control all investigations on state property, can
local police patrol or direct traffic on highways such as Route 93,
Route 2, and Route 128?
"4. If State owned property requires State Police investigation, does
this mean that anytime accidents, crimes or other emergencies oc-
cur on state owned property, such as highways and hospitals, that
the state police must be called and that local police can do
nothing?"
So far as your questions concern "investigation," I observe that we are
dealing with a term of broad scope. It includes formal searches pursuant to
a warrant as well as informal inquiries and questioning of victims of crimes
and the witnesses thereto. See Opinions of the Justices, 328 Mass. 663,
666.
Further, I observe that at common law, the power of a police officer to
make an arrest without a warrant is territorially limited, stopping at the
P.D. 12 137
boundaries of the governmental unit by which he was appointed, unless un-
der the doctrine of "fresh pursuit" he is engaged in the continuous pursuit
of a felon into another jurisdiction. 5 Am. Jur. 2d Arrest, sees. 50-51; 4
Wharton's Criminal Procedure (1957 ed.) sec. 1614. I regard this common
law rule for felonies to be the law of Massachusetts. Chapter 263 of the
Acts of 1967, inserting § 98A into G. L. c. 41 , has extended it to municipal
police officers "on fresh and continued pursuit" of an offender "in any other
city or town for any offence committed in his presence within his jurisdic-
tion for which he would have the right to arrest within his jurisdiction with-
out a warrant." (Emphasis supplied.)
When executing a warrant of arrest or commitment, however, a police of-
ficer's power is state -wide. Commonwealth v. Martin, 98 Mass. 4. G. L. c.
279, § 38. G. L. c. 41, §§ 95 and 98. And when requisitioned by officials of
another municipality under G. L. c. 41, § 99, police officers also have ex-
tra-territorial powers. See also the Civil Defense Act, G. L. c. 33 (App.), §
1 3- 11 , St. 1 950, c. 639, § 1 1 , as amended.
Your questions go beyond the foregoing cases since they refer to situa-
tions, such as investigations, respecting which no warrant or official process
has been issued.
In the light of the foregoing general principles, I now turn to your
questions.
Questions J and 2: Local police officers have no greater powers at com-
mon law to enter state-controlled property than they have to enter land pri-
vately controlled. A recent statement of their common law powers with res-
pect to entry on private property was contained in the case of I'hurlow v.
Grossman, 336 Mass. 248, 250, where the Court said:
"Lawful entry may be made 'to save goods which are in jeopardy
of being lost or destroyed by water, fire, or any like danger' [cita-
tion] , to prevent the spread of fire [citation] , and to make arrests
[citation]. A police officer who enters upon private premises in
good faith in the performance of his official duty to protect life
and property and to preserve the peace is not a trespasser."
Nothing in the foregoing statement authorizes a police officer to make an
unauthorized entry for the purpose of investigation only. He may, however,
make an entry for that or any other lawful purpose to the extent that the
person in control of the premises consents to the entry.
On the facts as you present them, it appears that state officials have de-
nied municipal police officers the right to enter state property to interview
persons there concerning offenses committed outside the premises. Under
these circumstances, it is my opinion that access may be denied. This con-
clusion is consistent with an Attorney General's opinion in 1949. (Report of
the Attorney General for the Year Ending June 30, 1 949, p. 45.).
It does not follow that "the State Police [must] take over every phase of
an investigation if entry on State property is necessary." Whether or not the
State Police "take over" is up to the appropriate State officials. There is no-
thing to prevent the appropriate State officials and local police authorities
from entering into mutually satisfactory arrangements permitting the con-
ducting of investigations on State property.
Question 3: My answer is Yes. Under G. L. c. 81, § 19, a municipality
138 P.D. 12
"shall have police jurisdiction over all state highways within its limits." See
G. L. c. 4, § 7, and Commonwealth v. Therberge, 231 Mass. 386, 390. If
the State Police are, however, actually exercising control at a particular
time over a particular portion of a state highway, their control would be
paramount in the unlikely event of any question.
Question 4: This question presents several situtions — "accidents,
crimes, or other emergencies ... on state owned property, such as highways
and hospitals . . . ." As for crimes on highways, I refer you to my answer to
Question 3. As for crimes committed on other state property, I refer you to
my answer to Questions 1 and 2. As for accidents or emergencies, I again
refer you to my answer to Questions I and 2 and particularly to the state-
ment quoted from TImrlow v. Crossman. I also call your attention to that
part of G. L. c. 41 , § 98 which authorizes local police to "enter any building
to suppress a riot or breach of peace therein;" and to make arrests in
connection therewith. Although there is no judicial decision interpreting the
quoted provision, I am of the opinion that its reference to "any building"
may well include state -controlled as well as privately controlled premises.
That this conclusion is a correct statement of the law is supported by the
quotation from Thurlow v. Crossman, cited above, indicating the historic
authority and responsibility of police officers to preserve the peace.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 51. November 16, 1967.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District Com-
mission
Dear Commissioner Whitmore: — You have asked for my opinion on
whether two wells which the Town of Wellesley desires to drive within fifty
feet of the Charles River and about two miles away from the nearest exist-
ing well field in the town are subject to the provisions of G. L. c. 92; § 16.
That section which originated in c. 488, § 23 of the Acts of 1 895, known as
the Metropolitan Water Supply Act, states in relevant part:
"No town, except Hingham and Hull, any part of which is within
ten mijes of the state house, or water company owning a water
pipe system in any such town shall, except in case of emergency,
use for domestic purposes water from any source not now [I 895 ]
used by it except as provided in this chapter." (Emphasis sup-
plied.)
It is undisputed that a part of Wellesley is within ten miles of the State
House. No claim is made that an emergency exists. It appears that the water
from the proposed wells is to be used for domestic purposes.
The application of G. L. c. 92, § 1 6 to Wellesley must be judged with
reference to c. 166 of the Acts of 1883, "An Act to Supply the Town of
Wellesley with Water." That act authorized Wellesley to "supply itself and
its inhabitants with water for the extinguishment of fires, and for domestic
and other purposes." (Sec. 1 .) It also authorized the town,
"for the purposes aforesaid, [to] take, by purchase or otherwise,
and hold, the water of Charles River within the limits of or where
P.D. 12 139
it borders on said town, and of Longfellow's Pond, so called,
within the limits of said town, and the water rights, connected
with any such water sources." (Emphasis supplied.) Sec. 2.
An engineering report which accompanied your request for my opinion
indicates that the water for the proposed new wells comes from under-
ground waters that will probably originate in the Charles River watershed.
It does not appear that any other body of water will be involved. '
The engineering report also indicates that since the enactment of the Met-
ropolitan Water Supply Act in 1895, Wellesley has driven several wells
close to wells which existed prior to that year. As already stated, however,
the proposed new wells will be about two miles away from any existing well,
although they will, it seems, be in the Charles River drainage area.
I will assume that the term "sources" in the 1 883 statute included not
only water taken directly from the Charles River but also ground waters
connected with it. See Bailey v. [Voburn, 126 Mass. 416, 418; Smith v.
Stoughton, 185 Mass. 329, 332-333. And 1 will also assume that the wells
driven by the town since 1 895 may properly be regarded as free of the re-
strictions of G. L. c. 92, § 16. However, the proposed new wells are, in my
opinion, subject to them and cannot be regarded as mere improvements of
an existing source used in the year 1 895.
I base this conclusion on what I consider to be the fair interpretation and
underlying purposes of the Metropolitan Water Supply Act. That Act estab-
lished a comprehensive system of water supply for cities and towns within
the Metropolitan Water District. Designed "to provide ... a sufficient sup-
ply of pure water" for the municipalities in the District, it established the
Metropolitan Water Board (§ 1 ), since merged into the Metropolitan Dis-
trict Commission; authorized the Board to regulate the flow of certain wa-
ters (§ 4), to take land by eminent domain (§ 5), to construct storage reser-
voirs (§ 6), to construct buildings, roads, and aqueducts (§ 9), and to build
waterworks (§ 12). The Act also authorized a loan of twenty-seven million
dollars to carry out its purposes.
The District was originally composed of fourteen cities and towns, not in-
cluding Wellesley, and has since been enlarged to include twenty municipal-
ities, still not including Wellesley. This enlargement occurred as the result
of a provision in § 3 of the 1895 Act (now, as amended, G. L. c. 92, § 10)
which authorized the Board to admit other municipalities to the District.
It is, in my opinion, clear that the 1 895 Act was designed to establish a
unified and ultimately, perhaps, an exclusive system of water supply for
municipalities, any parts of which were within ten miles of the State House.
Continuation of the use of certain existing local sources was to be permit-
ted but any enlargement was made subject to the requirements of § 23 (now
G. L. c. 92, § 16) quoted above. This restriction appears to have been in-
tended to enable the District to become the paramount supplier of water for
all the communities and to encourage any community not already a member
of the District to become a member, if it desired to expand its existing facil-
ities. In this manner, it appears, the water supply for the general area could
be handled according to a single plan rather than according to the separate
and uncoordinated plans of the different localities therein.
Hence, St. 18S»7. c. 102, relative to the water ot" Rosemary Brook and Longet'ellow's Pond, and St.
1^61, e. 45'^, relative to use by Wellesley ot land in Needham, for water supply purposes, have no ap-
plication.
140 P.D. 12
In the light of this background and without attempting to formulate a
more precise definition of the term "source," as used in the 1 895 statute, it
is my opinion that the water for the proposed wells, which are, as stated,
about two miles from the nearest well field, cannot in any true sense, be re-
garded as a water "source" used by the Town of Wellesley in the year 1 895.
Hence, the driving of these wells is subject to the provisions of G. L. c. 92,
§ 16.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 52. November 20, 1967.
Honorable Kenneth R. Fox, Chairman, Board of Trustees
Dear Mr. Fox: — You have asked for my opinion concerning the power
of the Board of Trustees of State Colleges to establish a general policy ter-
minating the services of state college presidents when they reach their six-
ty-fifth birthday. Specifically, you have posed three questions:
"1 . ... [D]oes the Board of Trustees have the power, express or im-
plied, to require the presidents of the colleges under its jurisdiction
to retire from the presidency and from state service on the date on
which they reach age sixty-five or at the end of the academic year in
which they reach this age?
"2. Does the Board of Trustees of State Colleges have the power, ex-
press or implied, under Chapter 73, Section 1 6, to require the pres-
idents of the colleges under its jurisdiction to retire from the presi-
dency at age sixty-five and to assign such persons to other profes-
sional duties?
"3. If the answer to question 2 is in the affirmative, would the Board be
required to keep such persons in 'other professional duties' until the
mandatory retirement age for state employees as indicated in Chap-
ter 32, Section 1?"
By virtue of G. L. c. 73, § 16, inserted by § 15 of c. 642 of the Acts of
1963, "An Act Further Regulating the Administration of the State Colleges
of the Commonwealth," a president of a State College is regarded as a
member of the "professional staff thereof, as defined in the foregoing sec-
tion (as distinguished from the "nonprofessional statT' as defined in the
same section) since he is employed for "administration" of the college that
he heads. He is elected by the Board of Trustees of State Colleges, and like
other members of the professional staff is, under G. L. c. 73, § 16, subject
to the "complete authority" of the Board with respect to "election or ap-
pointment of the professional staff including terms, conditions and period of
employment, compensation, promotion, classification and reclassification,
transfer, demotion and dismissal . . . ."
Despite the foregoing "complete authority" of the Board, a protective
provision is nevertheless applicable. Thus § 17 of St. 1963, c. 642 (not in-
serted in the General Laws) provides that nothing in the act should be "con-
strued to deny to any employee | in a state college 1 employed prior to the
effective date of this act [July 1, 1963] any of his vQ§ted or contractual
rights as a state employee."
P.D. 12 141
The protection of vested and contractual rights afforded by the foregoing
provision was continued by §§ 44 and 45 (neither of which was inserted in
the General Laws) of c. 572 of the Acts of 1965, a more comprehensive
statute, entitled "An Act to Improve and Extend the Educational Facilities
in the Commonwealth." Section 44, although it stated that the professional
staff of the State Colleges "shall serve at the pleasure" of the Board of Trus-
tees, went on to provide that "the tenure of office of any member of such
staff on the effective date of this act shall not be impaired." Section 45, as
amended by c. 356 of the Acts of 1966, not inserted in the General Laws,
preserved the "seniority, tenure, retirement, or other rights of any perma-
nent civil service employee [of a State College] or veteran covered by sec-
tion nine A of chapter 30 [the Veteran's Tenure Act] of the General Laws,
. . . employed on the effective date of this act . . . ." Since neither the 1 965
act nor the 1 966 amendment diminished any protection already afforded by
the 1963 legislation, alUvested or contractual rights of a state employee on
the effective date of the 1963 act, namely, July 1, 1963, have since re-
mained unimpaired.
It does not appear from the information which you have submitted
whether any of the presidents of our state colleges held civil service tenure
on July 1, 1963. I will, therefore, assume, for the purpose of this opinion,
that none of the presidents held such tenure. The information does, howev-
er, indicate that one or more of the presidents may have had tenure on that
date under the Veteran's Tenure Act. These officials are in my opinion enti-
tled to its protection. To the extent that this conclusion may differ from
views expressed in an opinion of a former Attorney General dated January
1 3, 1 967, I am constrained not to follow the earlier opinion.
Applying the foregoing principles to your questions, my answers are as
follows:
Question I. Yes, except for presidents who on January 1, 1963 had
tenure under the Veteran's Tenure Act. Mandatory retirement of holders of
such tenure is subject to that Act.
Question 2. Yes, except that a president who held tenure under the
Veteran's Tenure Act on January 1 , 1 963 may be assigned to other duties
only in accordance with the provisions thereof (G. L. c. 30, § 9A), as modi-
fied by c. 356 of the Acts of 1 966. The latter statute authorizes a transfer of
an employee, in order to "staft^' a State college, provided that (1) the em-
ployee is transferred to another position in his employing unit (in this case
the college where the president serves); (2) his salary is not reduced as the
result of the transfer; and (3) his salary grade is not raised as the result of
the transfer without the approval of the Director of Civil Service and the
Director of Personnel and Standardization.
Question 3. As for presidents who did not have tenure under the Veter-
an's Tenure Act on July 1, 1963, the Board of Trustees is not required to
keep a president in "other professional duties" until he reaches the manda-
tory retirement age under G. L. c. 32, § 7. The provision in G. L. c. 73, §
1 6, which gives to employees of state colleges "the same privileges and ben-
efits of other employees of the Commonwealth such as retirement benefits . .
." does not, in my opinion, restrict the "complete authority" given to the
Trustees, under the same section quoted above in this opinion, over the em-
ployment of members of the professional staff. If the Trustees elect to exer-
cise this authority so as to require a president to retire, then he will, of
142 P.D. 12
course, be entitled to the retirement benefits that have been accrued to him.
In view of my answer to your first question, no answer is required to your
third question so far as it may relate to holders of veteran's tenure.
Finally, if any of the presidents held civil service tenure on July 1 , 1963,
further qualifications of my answers may be required.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 53: December 6, 1967.
Honorable Milton Greenblatt, M. D., Commissioner of Mental Health
Dear Doctor Greenblatt: — You have requested my opinion on
whether, in light of the enactment of c. 735 of the Acts of 1966, "An Act
Establishing a Comprehensive Program of Mental Health and Mental Re-
tardation Services," the Department of Mental Health may still avail itself
of financial assistance and establish clinics at facilities provided by cooper-
ating incorporated private agencies. Chapter 735 replaced c. 19 of the Gen-
eral Laws with a new c. 1 9 and it also repealed and amended several sec-
tions of G. L. c. 1 23. You state that the Department "construes the new Act
... as not preventing these cooperative community services from continu-
ing, provided they do not conflict with the powers and duties of any Area
Board . . . ."
It is my opinion that the Department of Mental Health may still avail it-
self of financial assistance and establish clinics at facilities provided by co-
operating incorporated private agencies, and I am therefore in agreement
with your construction of c. 735 in this respect.
Prior to the enactment of c. 735, G. L. c. 123, § 13A specifically provid-
ed that clinics might be established in collaboration with private agencies.
Section 1 3A authorized the Division of Mental Hygiene to:
"establish, foster and develop out-patient clinics. Said clinics may
be established in collaboration with public schools, private
schools, or other agencies providing co-operative or complemen-
tary facilities to the state clinics . . . ."
Section 13A was repealed by c. 735, inasmuch as the Division of Mental
Hygiene was abolished as a mandatory division of the Department of Men-
tal Health, and the Commissioner now has the discretionary authority to
"establish such divisions in the department as he deems appropriate from
time to time."
Although the provisions inserted by c. 735 do not confer on the Depart-
ment of Mental Health the powers previously conferred by § 13A on the
Division of Mental Hygiene in so many words, it is nevertheless my opinion
that they contain adequate authority for collaboration with private agencies
in the establishment of clinics. The revised G. L. c. 19 makes several refer-
ences to private facilities and provides that the Department shall have gen-
eral supervision of all such facilities for mentally ill or mentally retarded
persons. Under G. L. c. 19, § 1, supervision of "comprehensive centers and
clinics" is also conferred upon the Department, and, more importantly, the
Department is authorized "subject to appropriation" to "further develop ad-
P.D. 12 143
ditional state hospitals, state schools, comprehensive centers and clinics, or
other mental health facilities under commonwealth operation . . . ." This
latter grant of authority is, in my opinion, sufficiently broad to encompass
the establishment of clinics in collaboration with cooperating incorporated
private agencies, and the authority is not diminished by the fact that the
clinics are established with the use of private funds and no appropriation
may be necessary. The words "subject to appropriation" should be read as
only requiring an appropriation prior to the establishment of clinics where
funds are needed and are not otherwise available.
Finally, it is important to note that c. 735 did not affect in any way G. L.
c. 40, § 5(40C). That sub-paragraph authorizes the expenditure of munici-
pal funds:
"For providing co-operative or complementary facilities to
out-patient clinics established or to be established in accordance
with the provisions of chapter nineteen, in co-operation with the
department of merital heaUh and other agencies collaborating
with said department . . . ." (Emphasis supplied.)
In conclusion, the Department of Mental Health may still avail itself of
financial assistance and establish clinics at facilities provided by cooperating
incorporated private agencies. On the facts presented, no problem appears"!
to arise with respect to the 46th Amendment to the Massachusetts Constitu- 1
tion, the so-called Anti-Aid Amendment. I
Very truly yours,
Elliot L. Richardson, Attorney General
Number 54. December 8, 1967.
Honorable Leo L. Laughlin, Commissioner of Public Safety
Dear Commissioner Laughlin: — You have requested my opinion as to
who is the "head of the fire department" of the City of Maiden within the
meaning of G. L. c. 148, § 4. Specifically, you have asked to whom may
"the State Fire Marshal delegate the authority vested in him by G. L. c.
148, § 4, to the Fire Commissioner or to the .Chief of Department?"
General Laws c. 148, § 4 provides as follows:
"The marshal, an inspector, the head of the fire department, or
any person to whom the marshal or the head of the fire depart-
ment may delegate the authority, may, in the performance of the
duties imposed by this chapter, or in furtherance of the purpose
of any provision of any law, ordinance or by-law relating to the
subject matter of this chapter, or of any rule or regulation of the
board of fire prevention regulations, established under section
fourteen of chapter twenty-two, in this chapter referred to as the
board, or any order of the marshal or head of the fire department,
enter at any reasonable hour any building or other premises, or
any ship or vessel, to make inspection or investigation, without
being held or deemed to be guilty of trespass.
"The marshal or the head of a fire department to whom he may
delegate authority, shall make an inspection every three months
144 P.D. 12
of institutions as defined in section one of chapter one hundred
and forty-three, licensed by and under the supervision of the de-
partment of public health, or licensed by the department of public
welfare, and shall make a report of such inspection to each such
department on forms submitted to the marshal by such depart-
ment for this purpose. Said marshal or such head of a fire depart-
ment shall also make an inspection every three months of the
premises specified in innholder's licenses issued under chapter
one hundred and forty." (Emphasis supplied.)
Because the Marshal is permitted to delegate to "any person" the authori-
ty given him under the first paragraph of § 4, it is clear that the question
you ask relates to the delegation of the powers conferred on the Marshal by
the second paragraph. As to these, it is necessary to determine who the
"head" of Maiden Fire Department is within the meaning of § 4.
General Laws c. 148, § 1 defines the term "head of the fire department"
as follows:
" 'Head of the fire department', the chief executive officer of
the fire department in a city, town or fire district having such an
officer, otherwise the fire commissioner, board of fire commis-
sioners or fire engineers, or commissioner of public safety; and, in
towns not having a fire department, the chief engineer, if any,
otherwise the chairman of the board of selectmen." (Emphasis
supplied.)
From the wording of the statutory definition, it is clear that in any fire de-
partment having a "chief executive officer," that officer is considered to be
the "head of the fire department."
This conclusion is supported by an examination of the historical develop-
ment of the definition of "head of the fire department" in c. 148. This term
originated in St. 1914, c. 795, § 1, which provided:
"The words 'heads of fire departments', as used in this act,
mean the fire commissioner or board of fire commissioners in
those cities in the metropolitan district that have such an official
or officials; the commissioner of public safety in Cambridge; the
chief executive officer of the fire department of each of the other
cities and towns within the metropolitan district, and the chief ex-
ecutive officer of the fire department of any fire district now exist-
ing or hereafter created in any one or more of said cities or
towns."
This definition was revised by Acts of 1 930, c. 399, § I , as follows:
" 'Head of the fire department', the fire commissioner, board of
fire commissioners or fire engineers, or commissioner of public
safety in those cities and towns having such an officer or officers;
the chief executive officer of the fire department of each other
city, town or fire district; and, in towns not having a fire depart-
ment, the chief engineer, if any, otherwise the chairman of the
board of selectmen."
Both the original definition in 1914 and the revised definition in 1930 in-
dicate that the term "fire commissioner" did not necessarily encompass the
term "chief executive officer." Each definition contemplated that a single
P.D. 12 145
fire department, depending on its internal structure, could have a different
person in each position, and that in such a case the fire commissioner, rath-
er than the "chief executive officer," would be deemed to be the "head of
the fire department."
By Acts of 1945, c. 470 the Legislature revised the definition of "head of
the fire department" to its present form in G. L. c. 148, § 1, quoted earlier
in this opinion, designating "the chief executive officer" as the "head of the
fire department" even though a municipality or district may also have a fire
commissioner or board of fire commissioners or fire engineers.
In order to ascertain who is the "head of the fire department" of Maiden,
it is therefore necessary to determine whether the department has a "chief
executive officer." I am of the opinion that it does and that person designat-
ed as the "Chief of the Department" is that person.
The statutory basis for the organization of the Maiden Fire Department
is found in St. 1 892, c. 1 82, a special act applicable to Maiden, creating a
board of three fire commissioners and directing them to establish a fire de-
partment. This act was followed by St. 1908, c. 93, which abolished Mai-
den's three-man board and vested their powers and duties in a single fire
commissioner. St. 1892, c. 1 82, § 1 provided in part:
"The board of fire engineers constituted and appointed by said
board of fire commissioners, or the chief or head of the fire de-
partment constituted and appointed by said board in case no
board of fire engineers shall be constituted by said board, shall
have and exercise all the powers and be subject to all the duties
which have been conferred or imposed by law upon boards of fire
engineers or the chief or head of fire departments, or which may
hereafter be so conferred or imposed by law."
Paraphrasing this language (but reflecting the substitution by St. 1908, c.
93, of a single fire commissioner for the earlier board of fire commission-
ers), § 53 of the 1908 Revised Ordinances of Maiden provides in part:
"The Board of Fire Engineers constituted and appointed by
said Fire Commissioner, or the Chief or head of the Fire Depart-
ment constituted and appointed by said Commissioner, in case no
board of Fire Engineers shall be constituted by said Commission-
er, shall have and exercise all the powers and be subject to all the
duties which have been conferred or imposed by law upon boards
of fire engineers or the Chief or head of fire departments, or
which may hereafter be so conferred or imposed by law."
Both the statute and the ordinance contemplated that the Fire Commis-
sioner would appoint either a board of fire engineers or a chief and that the
board or chief so appointed will "have and exercise all the powers and be
subject to all the duties which have been conferred or imposed by law upon
. . . heads of fire departments, or which may hereafter be so conferred or
imposed by law."
The 1956 Rules and Regulations of the Maiden Fire Department, which
I understand are still in effect, show that the Fire Commissioner has not
constituted a Board of Fire Engineers, but has constituted an officer desig-
nated as the "Chief of the Department," and has vested in him the compre-
hensive powers and duties which would normally appertain to a "chief exec-
utive officer." The Chief of the Department is stated to be "the channel of
146 P.D. 12
all communication between the Commissioner and the department . . . ."
(Rule 3, § 1 ; see also Rule 21, § 24.) He "shall be responsible to the Com-
missioner for the proper performance of all duties of the members of the
Department, for the proper care and use of all property and equipment and
that all orders, rules and regulations are strictly enforced" [sic] . (Rule 3, §
2.) He is given extensive disciplinary control over all members of the De-
partment, including authority to suspend members, subject to review by the
Commissioner (Rule 3, § 4). He appoints the Station Commanders, subject
to approval by the Commissioner, and receives their reports concerning the
status of the men and equipment under their immediate control (Rule 5, §§
1 , 4 and 6). While the Commissioner promulgates the formal Rules and reg-
ulations of the Department, the Chief is empowered to issue orders binding
on the entire Department, subject to approval by the Commissioner (Rule 3,
§ 7). When present at fires, he directly commands the entire Department
(Rule 3, § 5).
A careful reading of the Rules and Regulations leads me to the conclu-
sion that the Chief of the Maiden Fire Department is vested with the powers
and responsibilities which ordinarily pertain to the chief executive officer of
any organization. He is clearly the chief officer responsible for executing the
day-to-day operation of the Department and the rules, regulations and poli-
cies of the Fire Commissioner.
The fact that the Chief is subordinate to the Fire Commissioner within
the Maiden Fire Department does not alter this conclusion. It is, in my opi-
nion, clear that the present definition of ''head of the fire department" in G.
L. c. 148, § 1 presupposes that for the limited purpose of applying the defi-
nition a "head" of a fire department may actually be such a subordinate
official.
I should add that nothing in this conclusion should be construed as in any
way derogating from the authority and responsibilities of the Fire Commis-
sioner and his paramount supervisory power, within the Maiden Fire De-
partment, over the Chief and the Department itself. See Dooling v. Fire
Commissioner of Maiden, 309 Mass. 156.
In summary, then, it is my conclusion for the limited purpose of applying
the definition of "head of the fire department" in G. L. c. 148, § 1 to the
Maiden Fire Department, the Chief of the Department is that person.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 55. December 21, 1967.
Honorable Robert Q. Crane, Treasurer and Receiver General Chairman,
State Board of Retirement
Dear Mr. Treasurer: — As Chairman of the State Board of Retire-
ment, you have requested my opinion on whether a veteran' who has been
employed as an air technician by the Massachusetts Air National Guard for
more than thirty years is eligible for retirement under G. L. c. 32, § 58.
You state that the veteran cites c. 606 of the Acts of 1 963 as "qualifying"
means a person who c|ualilies as such under (he definition con-
V. lioston. Ml Mass. hl,l\) and G. L. c. 4, ij 7 (4J).
P.D. 12 147
him for such retirement. You ask, in effect, whether a person so employed
must be otherwise qualified as a state employee or whether employment as a
caretaker or air technician only is a sufficient basis for qualification. It is my
opinion that a veteran who has been employed as an air technician by the
Massachusetts Air National Guard for more than thirty years is eligible for
retirement under G. L. c. 32, § 58, but this opinion is not based solely on c.
606 of the Acts of 1963.
The question posed in your request requires a brief review of the several
applicable statutory provisions. The most important provision is G. L. c.
32, § 58, which establishes a special retirement provision for veterans, sep-
arate and distinct from the provisions applicable to members of the State
Employees' Retirement System. It states:
"A veteran who has been in the service of the commonwealth, or
of any county, city, town or district or any housing authority, for
a total period of thirty years in the aggregate, shall, at his own re-
quest, with the approval of the retiring authority, be retired from
active service . . . ."
The section does not define the phrase "in the service of the common-
wealth," which, for our purposes, is central to a resolution of your
question.
Apparently assuming that service as an air technician or caretaker with
the Massachusetts National Guard was not regarded as employment by the
Commonwealth, at least for service prior to July 1 , 1 939, the Legislature in
1963 enacted c. 606 of the Acts of 1963. That chapter (not inserted in the
General Laws) provides:
"Not withstanding the provisions of any general or special law
to the contrary, any person who is now a member of the state re-
tirement system and who was employed by the Massachusetts Na-
tional Guard as a caretaker or air technician prior to July first,
nineteen hundred and thirty-nine, shall be considered to have
been employed by the commonwealth prior to said date, and shall
be subject to the provisions of sections fifty-six to fifty-nine,- in-
clusive, of chapter thirty-two of the General Laws, and may, if
otherwise eligible, be retired under said sections."
Although c. 606 indicates that employment as a caretaker or air technician
by the Massachusetts National Guard prior to July 1 , 1 939 shall be con-
sidered as employment by the Commonwealth prior to that date, the Chapter
does not answer the question of how service as an air technician or caretak-
er after that date is to be treated. We must look elsewhere for the answer.
My investigation discloses that in 1947, former Attorney General Barnes
ruled that certain personnel, including caretakers of the National Guard,
under the jurisdiction of the Adjutant General were not eligible to be mem-
bers of the State Employees' Retirement System since they were paid direct-
ly by the Federal government. The Attorney General stated:
"The holders of the foregoing positions who are paid directly
by the Federal Government are not eligible for membership in
the Retirement System, irrespective of the fact that they may be
"G. L. c. il, SS 56-59 relate to the retirement of veterans.
148 P.D. 12
in the employ of the Commonwealth." (Emphasis supplied.) Re-
port of the Attorney General for the Year Ending June 30, 1948,
pp. 35-36.
It is important to note that Attorney General Barnes declared, without ex-
tended discussion, that personnel employed in a civilian capacity by the
Massachusetts National Guard "may be in the employ of the Common-
wealth." Although the Attorney General's opinion did not directly address
itself to the question now before me, his reference to the status of civilian
personnel of the National Guard should not pass unnoticed.
In 1 950, the General Court made certain amendments to the laws gov-
erning the State Employees' Retirement System. Membership in the system
was broadened to include air technicians and caretakers of the Massachu-
setts National Guard, previously excluded, because, as stated in the opinion
of Attorney General Barnes, they were paid directly by the Federal Govern-
ment. This extension was accomplished by the enactment of ^ 1 of c. 600 of
the Acts of 1950 (amending G. L. c. 32, § I) which redefined the word
"Employee" to include caretakers and air technicians employed by the Mas-
sachusetts National Guard. By § 3 of c. 600 (not inserted in the General
Laws), the Legislature provided that "Every person in the employ of the
commonwealth on the effective date of this act [i.e. July I I, 1950] who
comes within the meaning of 'Employee', as defined in section one of this
act, shall become a member of the state employees' retirement system as of
said effective date . . . ."
I realize, of course, that the definitions contained in G. L. c. 32, § I ap-
ply, in terms, only to §§ 1 to 28 of the chapter, the sections which concern
the State Employees' Retirement System. They do not specifically apply to
§i^ 52 to 60 of the chapter, because those latter sections treat veterans sepa-
rately from members of the State Employees' Retirement System. In the lat-
ter sections, the test of eligibility for retirement (at the State level) is framed
in terms of the veteran having been "in the service of the commonwealth"
(G. L. c. 32, § 58) rather than having been an "employee." Yet, there is no
reason to infer an intent on the part of the Legislature to confer the status of
an "employee" on air technicians and caretakers for some purposes but not
for others. If air technicians and caretakers are "employees" and are "in the
employ of the commonwealth" for purposes of membership in the State Em-
ployees' Retirement System, then it seems logical and consistent to treat
them as "employees" and "in the service of the commonwealth" for purpos-
es of the special retirement provisions applicable to veterans, namely, G. L.
c. 32, §§ 52 to 60. I therefore conclude that veterans who have served as air
technicians or caretakers in the Massachusetts National Guard may be re-
tired under G. L. c. 32, § 58, provided they have the requisite length of
service and are in active service at the time of retirement. See Werner v.
Boston, 342 Mass. 67, 7 L
This conclusion is supported by a decision of the Supreme Court of the
United States in 1965 in the case of Maryland v. United States, 381 U.S.
4 1 . Although that case arose under the Federal Tort Claims Act, the princi-
ples enunciated therein are equally applicable to other questions involving
the status of the National Guard's personnel. The Court held that civilian
employees of a National Guard are employees of the states and not of the
Federal Government. In the course of its decision, the Court stated, at pp.
49-50:
P.D. 12 149
"Civilian caretakers are treated as state employees for purposes
of the Social Security Act, for state retirement funds, and under
the regulations issued by the Department of the Air Force. As
early as 1920 the Comptroller of the Treasury ruled that a civil-
ian caretaker was not a federal employee entitled to the annual
leave provisions applicable to the War Department, an opinion
that was reiterated in 1 94 1 by the Comptroller General and that
reflects the consistent position of the Department of Defense."
It has long been the law, the Court observed, that military personnel of the
National Guard are not considered to be federal employees. Civilian em-
ployees should not be considered differently, the Court added, even though
they are
"paid with federal funds and must observe federal requirements
in order to maintain their positions. Although they are employed
to maintain federal property, it is property for which the States
are responsible, and its maintenance is for the purpose of keeping
the state militia in a ready status."
381 U.S. 41 (p. 48).
I therefore conclude, on the basis both of the Court's decision in 1965
and my analysis of other related Massachusetts statutes, that employment as
a caretaker or air technician of the Massachusetts National Guard consti-
tutes being "in the service of the commonwealth" for the purposes of G. L.
c. 32, § 58. Weighed against the considerations discussed above, I regard
the insertion of July 1 , 1939 in c. 606 as insufficient to indicate a legislative
intent to restrict the benefits that, apart from its provisions, were otherwise
available to veterans.
In summary, then, service as a caretaker of the National Guard for more
than thirty years satisfies the requirement of G. L. c. 32, § 58 that a veteran
have been "in the service of the commonwealth" for that period.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 56. December 26, 1967.
Honorable Mabel A. Campbell, Acting Director of Civil Service
Dear Mrs. Campbell: — You have asked my opinion as to whether po-
sitions in the Construction Division of the Metropolitan District Commis-
sion (MDC) are exempt from the Civil Service Law and Rules. It is my opi-
nion that they are exempt.
Your question arises out of the manner in which the Construction Divi-
sion was established in the MDC in the year 1947. Chapter 583 of the Acts
of that year abolished the Metropolitan District Water Supply Commission
(the Water Supply Commission) which had been established by Chapter 375
of the Acts of 1 926, and provided in § 1 that:
"[AJll its [the Water Supply Commission's] functions, rights,
powers, duties, obligations and properties are hereby transferred
to and shall hereafter be exercised, performed and held by the
metropolitan district commission, which shall be its lawful suc-
cessor .... [S]aid metropolitan district commission, to the ex-
150 P.D. 12
tent that funds have been made available, shall construct all water
and sewerage system projects now under construction by said met-
ropolitan district water supply commission, and those authorized
for future construction by said commission. All funds subject to
expenditure by said metropolitan district water supply commis-
sion are hereby made available to said metropolitan district com-
mission for the same purposes. All existing contracts and obliga-
tions of said metropolitan district water supply commission shall
remain in full force and effect and shall be assumed and per-
formed by said metropolitan district commission, and all orders,
rules and regulations heretofore made by said metropolitan dis-
trict water supply commission shall remain effective until duly re-
voked or modified by said metropolitan district commission."
Chapter 375 of the Acts of 1926, which had established the Water Sup-
ply Commission, provided in part in § 2:
"The commission may appoint and in its discretion remove
such engineering, legal, clerical and other assistants as it may
deem necessary to carry on the work herein authorized, and may
fix their compensation in accordance with such rules and regula-
tions as the commission may establish and as shall be approved
by the governor and council. Such appointments shall not be sub-
ject to classification under sections forty-five to fifty, inclusive, or
chapter thirty of the General Laws, and chapter thirty-one [the
Civil Service Law] of the General Laws shall not apply to remov-
als, and, in accordance with such regulations as the commission
may establish and as shall be approved by the governor and coun-
cil, any appointment, including that of the chief engineer, may be
wholly exempt from said chapter thirty-one. Upon request of the
commission, the division of civil service shall hold special exami-
nations."
When c. 583 of the Acts of 1947, quoted earlier in this opinion, trans-
ferred the Water Supply Commission to the MDC, it transferred the agency
intact without impairing any of its powers or attributes. Although the Water
Supply Commission's existence as a separate agency was merged into that of
the MDC, its identity was effectively preserved by § 2 of c. 583, which, in
my judgment, carried over all the attributes of the Water Supply Commis-
sion to the Division of Construction, established by § 2, within the MDC.
Section 2 provided:
"Except as provided in section three,' all of the persons em-
ployed on the effective date of this act by the metropolitan dis-
trict water supply commission shall be transferred as temporary
non-civil service employees, without loss of any rights, to a divi-
sion of construction which the commissioner of the metropolitan
district commission is hereby authorized and directed to establish
under said commission; and the persons so transferred shall not
be subject to the provisions of chapter thirty-one of the General
Laws, or the rules made thereunder."
I do not regard the foregoing provision preserving the non-civil service
status of the transferred employees as impliedly subjecting future employ-
section 3 provided, "The tenure of office of the commissioner and associate commissioners of tlie met-
ropolitan district water supply commission shall cease and determine on [June 30, 1447| ."
P.D. 12 151
ees, who are not expressly mentioned, to the Civil Service Law. On the con-
trary, the comprehensive provisions of § I of the 1 947 statute, which desig-
nated the MDC as the successor of the Water Supply Commission, with all
the latter's attributes, when read with § 2 of the same statute, establishing
the Construction Division of the MDC, convey a sufficiently clear legislative
intent that the provisions exempting from the Civil Service Law the removal
of the Commission's personnel and the provisions authorizing the adoption
of regulations exempting therefrom all appointments continued in force and
were applicable to appointments thereafter made by the MDC of employees
in its newly established Construction Division.
Rule 4 of the Water Supply Commission, adopted in 1926, stated that
"All appointments shall be wholly exempt from Chapter 3 1 of the General
Laws," Section 1 of c. 583 of the Acts of 1947, quoted earlier in this opin-
ion, stated that "all orders, rules and regulations heretofore made by said
metropolitan district water supply commission shall remain effective until
duly revoked or modified by said metropolitan district commission." It ap-
pears that the MDC has not revoked or modified Rule 4. It follows, in my
opinion, that Rule 4 is still in force.
The provision in § 2 of c. 583 of the Acts of 1947 transferring existing
employees of the Water Supply Commission to the Construction Division is
not inconsistent with this result. Section 2 was, in my judgment, simply an
aspect of the larger scheme to continue the Commission as an intact element
of the MDC. See Report of the Attorney General for the Year Endmg June
30, 1948, p. 69, determining that although the act of transfer of the existing
employees of the Water Supply Commission did not expressly deal with the
question whether the Division of Personnel and Standardization had author-
ity over their continued employment, the former provisions of the 1926
statute exempting employment within the Water Supply Commission nev-
ertheless continued to apply.-
In summary then, it is my opinion that none of the positions in the Con-
struction Division of the MDC are subject to the Civil Service Law and the
rules thereunder.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 57. December 29, 1967.
Honorable Milton Greenblatt, M.D., Commissioner of Mental Health
Dear Commissioner Greenblatt: — You have asked for my opinion
regarding the legality of certain payments out of the subsidiary account 03
in your department's budget. You have submitted three questions and have
given illustrations of the situations to which the questions relate. You ask:
" 1 . May this Department pay out of its subsidiary account 03 a full
time or part time employee of another Department or Division of
the Commonwealth for services rendered as enumerated in the 03
account?
"EXAMPLE: May we use the services of a full time or part
"Unlike ihe situation that was the subject of an opinion of the Attorney General in his Annual Report
for the Year Ending June 30, 19? I. p. 53, we are not in the present situation dealing with the effect of
a subsequently enacted statute.
152 P.D. 12
time social worker employed by the Department of Public Wel-
fare to do a social service study pertaining to Medical Assistance
at the Medfield State Hospital, an institution in the Department
of Mental Health, and remunerate said individual from our sub-
sidiary account '03'?
"2. May this Department pay out of its subsidiary account 03 a full
time or part time employee of this Department for services ren-
dered as enumerated in the 03 account?
"EXAMPLE: May a physician employed as Assistant to the
Commissioner of Mental Health conduct physical examinations
at the Medfield State Hospital, and be remunerated from subsidi-
ary account '03'?
"3. May a full time or part time employee of this Department be paid
for services rendered to another Department of the Common-
wealth?
"EXAMPLE: May a social worker employed by the Depart-
ment of Mental Health provide services as a social worker for the
Department of Public Welfare and be reimbursed by that Depart-
ment from its subsidiary account '03'?"
The 03 account to which you have referred is one of the subsidiary ac-
counts approved by the Joint Committee on Ways and Means under G. L. c.
29, § 271 to enable the primary fiscal control agencies, namely, the Budget
BJreau and the Comptroller, to control and account for expenditures from
the appropriation accounts for the several departments, boards, commis-
sion, institutions and other agencies of the Commonwealth. Pursuant to §
27, the Committee files with the Budget Director and Comptroller schedules
detailing the assignment of appropriations among subsidiary accounts.
While G. L. c. 29, § 29 gives the Budget Director broad power to transfer
funds from one subsidiary account to another within the same appropriation
account, this power is generally made subject to restrictions contained with-
in appropriation acts (see, e.g., St. 1965, c. 824, § 15; St. 1966, c. 41 1, §
15; and St. 1967, c. 414, § 15) and such transfers among subsidiary ac-
counts are required to be reported forthwith to the Comptroller, in order
that he may effectively exercise his supervisory control over the disburse-
ment of funds appropriated, and to the Committee.
Three of the subsidiary accounts which have been established under the
authority of G. L. c. 29, § 27 relate to personnel services.
The 1 account is entitled "0 1 Salaries, Permanent Positions" and covers
"All regular compensations ... to those in permanent approved positions in
the regular authorized list of positions in departments or in the quota for
institutions, whether the incumbent holding the position is on a permanent,
provisional or temporary appointment." The 02 account is entitled "02 Sal-
aries, Other" and covers "All regular compensation to those in temporary
positions, and all overtime." Finally, the 03 account to which you have re-
'ci. L. c. 29, i? 27 reads in part as follows:
"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 appropriation 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."
P.D. 12 153
ferred is entitled "03 Services — Non-Employees" and covers "All services
and related expenses conforming to [certain] conditions rendered or in-
curred by non-employees, except contractual services classified under any
other subsidiary account. "-
In an opinion dated July 6, 1967, I examined the general criteria which
must be met before a state employee may, under a statute authorizing the
employment of consultants, be compensated as a consultant for extra serv-
ices that he may render to the Commonwealth. -^ These criteria are applica-
ble to the questions and examples you have put to me.
Each of your questions involves the construction which has been or
should be given to the word "Non-Employees" in the title and description
of the 03 subsidiary account. These words, and the accompanying language
describing the accounts, were formulated by the Comptroller and the Budg-
et Director, and approved by the Joint Committee on Ways and Means.
They are administered and enforced by the Budget Director and the Comp-
troller. The classifications of the subsidiary accounts are thus in the nature
of administrative regulations rather than laws; and, accordingly, the con-
struction given by these officials is controlling, provided, of course, that
their construction is reasonable and does not violate any provision of law.
An inquiry into the practice followed by these officials has disclosed that
they have not construed the word "Non-Employees" so as to prohibit per-
sons who are paid as state employees from an 1 or 02 subsidiary account
from also receiving additional compensation for extra services from an 03
subsidiary account. Furthermore, these officials have regarded it as imma-
terial whether the employee receives additional compensation from the 03
account of his own or of some other department.
Rather, the officials concerned have adopted a practice which permits a
person who is paid from an 1 or 02 account to be compensated for extra
services from an 03 subsidiary account provided the extra services are of
such a nature that they could not be considered to be within the scope of the
employment for which he is being paid from an 01 or 02 account.
As I have said, the foregoing matters are within the discretion of the offi-
cials concerned, and i know of nothing illegal or improper with the prac-
tices outlined above, which 1 understand presently to be in effect. Accord-
ingly, it would appear that the fact that the intended recipients of compen-
sation under an 03 account are already employees of the Commonwealth
does not require negative answers to your questions. This is true even as re-
-The descriptions of these accounts are contained in Form BB541, entitled, "Subsidiary Accounts and
Expenditure Control Numbers for Budgetary Control," approved by the Joint Committee on Ways
and Means on January 12, 1965, and printed in October, 1966.
' See Opinion of the Attorney General 67/68 No. 2. This opinion discusses certain conditions absent
which a salaried state employee may not be compensated for extra services as a consultant (i.e., under
an 03 subsidiary account). For example, extra compensation under 03 may not be paid unless the extra
services are performed outside the employee's normal working hours; nor may such payment be made
if the extra services are required to be performed as part of the employee's salaried duties. Further-
more, the extra compensation may not be of such a character that it would violate G. L. c. 30, tj 21, by
providing in effect two salaries; and it must also be shown that no employee is available to perform
the services as part of his regular duties.
In addition to these criteria, which relate to state officers or employees desiring additional compensa-
tion under an 03 subsidiary account, there are other general limitations applicable to 03 compensation
which are described in Form BB541. For example, clerks, typists and stenographers may not be paid
under the 03 subsidiary account; nor may services be compensated under 03 unless they are for a limit-
ed, specified period of time. Both the earlier opinion and this opinion, of course, are concerned with
the special problems involving 03 compensation for persons who are already state officers or employ-
ees.
154 P.D. 12
gards the second question, where the intended recipient is to be given addi-
tional compensation from the 03 account of the same department that pays
him from an 01 or 02 account for his regular employment. Rather, in each
such case, the employee may be eligible to receive compensation from an 03
account, provided that his services satisfy in all respects the restrictive cri-
teria previously discussed. I would suggest that if you require further clarifi-
cation of these matters that you communicate directly with the Budget Bu-
reau and the Comptroller.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 58. January 3, 1968.
Mr. Francis X. Guindon, Director, Division of State Colleges
Dear Mr. Guindon: — You have requested my opinion as to whether G.
L. c. 79A, § 2 applies to the proposed acquisition of certain land for the
Massachusetts Maritime Academy. The land in question consists of some 74
adjoining lots located at Taylor's Point in Bourne, Massachusetts. There are
cottages on 54 of these lots, more than five of which are occupied by owners
or tenants throughout the year. The land is to be acquired pursuant to St.
1967, c. 682, § 2, Item 8068-16, whereby $600,000 was appropriated to
the Massachusetts Maritime Academy "For the acquisition of certain land,
or land with buildings thereon, for the development of the academy, by pur-
chase or by eminent domain under chapter seventy-nine of the General
Laws . . . ."
The provision of G. L. c. 79A, § 2 to which your inquiry is directed is as
follows:
"No acquisition which shall involve the displacement of occu-
pants of more than five dwelling units . . . shall be made unless
and until the bureau [of relocation] has qualified a relocation ad-
visory agency to give relocation assistance to the occupants to be
displaced."
The word "acquisition" is defined for purposes of the foregoing provision as
"a taking of real property by eminent domain or through purchase by an
agency, public or private, authorized to take land by eminent domain, for a
purpose for which such real property might have been taken by eminent do-
main." G. L. c. 79 A, § 1. The term "dwelling unit" is defined as "a room,
suite of rooms, apartment or house occupied as a single residential unit by
one or more persons." Ibid.
Thus, if the taking or purchase of the 74 lots were treated as a single "ac-
quisition" of property, G. L. c. 79A, y> 2 would clearly apply. In your letter,
however, you say "that in the purchase or taking of the said 74 lots that
each acquisition is separate and distinct from each of the others," and "that
in purchasing or taking from any of the owners of said 74 lots there will not
be a displacement of more than five dwelling units . . . ."
After careful consideration, 1 am obliged to say that I cannot agree with
this contention. In Item 8068-16 of St. 1967, c. 682, § 2, the Legislature
made a single appropriation for the "acquisition" of this land in its entirety
to serve a single purpose (i.e., "the development of the academy"). The
P.D. 12 155
Legislature must, of course, have contemplated the possibility that the ac-
quisition authorized might involve parcels owned by different people, and
hence a multiplicity of conveyances. By the same token, I do not read Item
8068-16 as imposing any limitation on the number of separate orders of
taking by eminent domain which the Academy might choose to adopt in ac-
quiring the property. Regardless of the mechanics employed by the Acade-
my, the acquisition contemplated, being authorized by a single legislative
enactment for a single purpose, and consisting of the assembling of what
will become a single, unified parcel of land, should not be regarded as a se-
ries of separate "acquisitions" — either for purposes of Item 8068- 1 6 or for
purposes of G. L. c. 79A, § 2.
The latter statute was enacted in order to facilitate the relocation of per-
sons displaced by the acquisition of their land for public purposes. The
problem of relocation is particularly acute where several homes are swept
away by a single public project. It was presumably for this reason that the
Legislature confined the application of § 2 to cases involving "more than
five dwelling units . . . ." The problem at which § 2 is aimed is in no way
alleviated by the use of separate deeds or separate orders of taking in ac-
quiring the various dwelling units, and I do not think that the Legislature
intended the application of § 2 to turn on any such fortuitous circumstance.
It is therefore my opinion that the proposed acquisition of Taylor's Point
is subject to the provisions of G. L. c. 79A, § 2.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 59. January 4, 1968.
Dr. Richard M. Millard, Chancellor, Board of Higher Education
Dear Chancellor Millard: — The Board of Higher Education has re-
quested my opinion as to whether, in the light of G. L. c. 151C, known as
the Fair Educational Practices Act, the University of Massachusetts may
make a racial census of its enrolled students in order to obtain data request-
ed by the Department of Health, Education and Welfare (HEW) of the Fed-
eral government. The Department of HEW has requested the University to
complete and file a report form entitled "Compliance Report of Institutions
of Higher Education Under Title VI of the Civil Rights Act of 1964." Ac-
companying the report was a memorandum from the Director of the Office
of Civil Rights in the Department of HEW stating, "The information is re-
quired pursuant to section 80.6(b) of this Department Regulation (45 CFR
80) and similar provisions of the Regulations of other Federal agencies."
The cited regulation is entitled, "Nondiscrimination in Federally-Assist-
ed Programs of the Department of Health, Education and Welfare — Effec-
tuation of Title VI of the Civil Rights Act of 1 964." Its stated purpose is
that "no person in the United States shall, on the ground of race, color, or
national origin, be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination under any program or activity
receiving Federal financial assistance from the Department of Health, Edu-
cation and Welfare." (45 CFR 80. 1 .)
156 P.D. 12
Section 80.6(b) of the regulation states:
"Each recipient [in this case the University of Massachusetts]
shall keep such records and submit to the responsible Department
official or his designee timely, complete and accurate compliance
reports at such times, and in such form and containing such infor-
mation, as the responsible Department official or his designee
may determine to be necessary to enable him to ascertain whether
the recipient has complied or is complying with this part."
The report form has one section which asks a series of questions about
students enrolled in the 1 967 fall term. Separate boxes are provided on the
form for the number of "White," "Negro" and "Other" students in various
categories: students enrolled in the fall term 1967; students residing in col-
lege-owned housing; and students receiving athletic scholarships.
The memorandum which accompanied the report form states that since
this report is the first such report required, estimated figures will be accepta-
ble in lieu of an actual count. The implication is plain, however, that esti-
mates will not be favorably regarded in the future.
Turning now to your specific questions, you ask:
" 1 . May the University of Massachusetts require and solicit informa-
tion, to be in writing, from the individual students of the University
as to their race, their color and their national origin solely in order
to meet the informational requirements of the Federal
Government?
"2. If the answer to Question No. 1 is in the affirmative, which Admin-
istrative Office of the University shall maintain such written records
and what general conditions should govern the use and custody of
such records to avoid violating the intent of C. 151 C of the Massa-
chusetts General Laws."
I find nothing in the Massachusetts Fair Educational Practices Act, G. L.
c. 15IC, which would prohibit the University from requiring and soliciting
the indicated information from its enrolled students. The prohibition of §
2(c) of the Act against an educational institution making an inquiry about
race, religion, color or national origin applies only to inquiries "of a person
seeking admission." I find no prohibition in the Act against making such an
inquiry of enrolled students to supply the information required by the De-
partment of HEW on its report form. I would assume, of course, that the
purpose of the inquiry will be explained to the students.
it is significant that our Supreme Judicial Court, in sustaining the power
of the Commissioner of Education to make a racial census of local public
schools under G. L. c. 69, § 1, stated, "Section 2 (c) has no application to a
general official statistical inquiry of this type." School Committee of New
Bedford v. Comtnisskmer of Education, 349 Mass. 410, 417.
Your second question presents issues which I regard as coming within the
administrative jurisdiction and judgment of the University. No issue under
G. L. c. 1 5 IC appears to be raised. 1 desire, however, to call your attention
to the following provision (45 CFR 80.6(d) ) of the Department of HEW's
regulations:
"Each recipient [in this case the University of Massachusetts]
P.D. 12 157
shall make available to participants, beneficiaries, and other in-
terested persons such information regarding the provisions of this
part and its applicability to the program under which the reci-
pient receives Federal financial assistance, and make such infor-
mation available to them in such manner, as the responsible De-
partment official finds necessary to apprise such persons of the
protections against discrimination assured them by the Act and
this part."
I trust that the foregoing adequately responds to your questions.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 60. January 8, 1968.
Hon. Howard Whitmore, Jr., Commissioner, Metropolitan District Com-
mission
Dear Commissioner Whitmore: — You have asked my opinion on the
interpretation that should be given to a certain contract executed by the Met-
ropolitan District Commission ("MDC") and the City of Chicopee ("City")
relative to supplying the City with water. The contract was executed on Au-
gust 26, 1948 (superseding an earlier contract dated December 26, 1947)
pursuant to authority given by G. L. c. 92, 5? 10(3), as amended by St. 1947,
c. 575, § I, which permits the MDC to sell MDC water to municipalities
which are not members of the Metropolitan Water System. An examination
of the correspondence that you and the City have furnished me indicates
that the City and the MDC differ on whether, on the one hand, the contract
required only that the facilities originally constructed by the MDC should
have a carrying capacity of about 23 million gallons daily, or, on the other
hand, the contract required the MDC to supply an indeterminate amount of
water and to construct facilities therefor from time to time as the water sup-
ply needs of the City demanded. In my judgment, the first interpretation is
the correct one.
Paragraph 1 of the contract provided:
"The said Commission agrees to construct a pressure aqueduct
with a carrying capacity of not less than 23 million gallons of wa-
ter daily and such other works as are necessary, or desirable, to
meet the present and future requirements of such water supply to
said City from Quabbin Reservoir to the Chicopee-Ludlow city
line, and will maintain said aqueduct and appurtenances and fur-
nish said City with its water supply from Quabbin Reservoir
through a distribution reservoir in Ludlow with a flow line at Ele-
vation 425 (Boston City Base) a usable depth of 20 feet and a us-
able capacity of approximately 23 million gallons, and by a
means of a thirty-six (36)-inch water main from this reservoir to
the Chicopee city line."
Paragraph I also required the MDC to reserve in the distribution reser-
voir, for the City's use, an average full day's supply of water.
By paragraph 2 of the contract the City agreed to construct at its expense
158 P.D. 12
a 36-inch pipeline from the Chicopee-Ludlow city line. Paragraph 3 set
forth a schedule of charges to be made by the MDC to the City, depending
on the average daily quantity of water supplied each year. Paragraph 4 stat-
ed that "this agreement shall continue for a period of fifty years after the
water is first furnished to said City; provided, however, that the City shall
have the right of extension for such periods of time and at such terms as
shall be mutually agreed upon by the Commission and the City." In para-
graph 5 the Commission agreed "to begin the construction . . . within a rea-
sonable time after the execution of this agreement . . . and to make every
reasonable effort to make water available in quantities desired under the
agreement by December 31, 1949 . . . ."
You state that the MDC has expended $3,983,000 to construct the Chi-
copee Valley Aqueduct system from Winsor Dam of the Quabbin Reservoir
to the Chicopee city line. Section 4 of c. 575 of the Acts of 1947 had au-
thorized the MDC to make this expenditure upon certification by the MDC
to the Governor and Council "that satisfactory agreements have been made
to supply an aggregate population of not less than forty thousand in the val-
ley of the Chicopee river and its tributaries . . . ." You state that the popula-
tion of the City was about 45,000 in 1948 and is now about 58,000.
It appears from the correspondence that the existing aqueduct is now op-
erating at nearly full capacity. To expand it to meet the presently anticipat-
ed increase in the City's water requirements would require substantial addi-
tional construction which could include a second pipe line, the cost of which
is estimated at $4,500,000.
I do not construe the contract as requiring the MDC to construct addi-
tional facilities. The reasonable interpretation of the contract is rather that
the extent of the MDC's obligation to construct facilities was only to build
in the first instance a system with a capacity of about 23 million gallons. It
is undisputed that the original system had this capacity.
That this was the limit of the MDC's obligation is, in my judgment, suffi-
ciently expressed in paragraph I of the contract, quoted above in this opin-
ion. In that paragraph the MDC agreed "to construct a pressure aqueduct
with a carrying capacity of not less than 23 million gallons of water daily
and such other works as are necessary, or desirable, to meet the present and
future requirements of such water supply to said city . . . ." (Emphasis sup-
plied.) I regard this clause as contemplating only one project, the scope of
which would be determined by the then existing requirements and the then
reasonably foreseeable future requirements of the City for its water supply.
The clause which reads, "to meet the present and future requirements of
such water supply" cannot, in my judgment, be reasonably interpreted as
imposing an open-ended obligation on the MDC to furnish whatever water
the City might at some future time require.'
That the foregoing interpretation is the correct one finds support in the
more specific provisions of paragraph I . These provisions, also quoted ear-
lier in this opinion, specify that the MDC will "furnish said City with its
water supply from Quabbin Reservoir through a distribution reservoir in
Ludlow with a flow line at Elevation 425 (Boston City Base) a usable depth
of 20 feet and a usable capacity of approximately 23 million gallons, and by
means of a thirty-six (36)-inch water main from this reservoir to the Chico-
It may be thai this clause should not even be regarded as imposing an obligation, but should be viewed
as merely describing the pinpose for which the aqueduct was to be biult.
P.D. 12 159
pee city line." (Emphasis supplied.) The foregoing particularization of the
elements and capacity of the water supply system indicates that the parties
to the contract contemplated only a system of the capacity described.
In summary then, I am of the opinion that, with respect to carrying ca-
pacity, the contract required only that the facilities originally constructed
should have a capacity of about 23 million gallons daily, and that the MDC
assumed no obligation to expand the facilities thereafter.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 61. January 16, 1968.
Honorable Hugh Morton, Chairman, Civil Service Commission, Division
of Civil Service
Dear Commissioner Morton: — You have requested my opinion as to
the power of the Civil Service Commission to reappoint an Acting Director
of Civil Service who has already served in that capacity for a period of six
months.
Your letter indicates that on July 21, 1967, the Commission appointed
an Acting Director of Civil Service to fill the vacancy created by the death
of the Director. This appointment was made pursuant to G. L. c. 13, § 2,
whereunder the Commission, in the event of such a vacancy, "may appoint
an acting director /<>/• not more than six months." (Emphasis supplied.) I in-
fer from your letter that the appointment was made for the full six-month
period allowed by the statute and, hence, that it will expire on January 20,
1968. You wish to know whether the Acting Director's appointment as such
may be continued for an additional period, not exceeding six months, if no
permanent Director has been appointed by January 20.
It is my opinion that the appointment of the Acting Director may not be
so extended. I interpret G. L. c. 13, § 2 as imposing a six-month limit not
merely on the term for which an Acting Director may be initially appointed,
but on the total period during which an Acting Director may be named to
fill a particular vacancy in the office of Director.
Under G. L. c. 13, § 2, the power to appoint a permanent Director, like
the power to appoint an Acting Director, is vested in the Civil Service Com-
mission. Thus, if ^ 2 were read as authorizing successive six-month appoint-
ments of an Acting Director, the Commission could, it would seem, treat
these appointing powers as alternatives and, if it chose, perpetuate an Act-
ing Director in office indefinitely.
I do not think that the Legislature intended to provide the Commission
with such alternative methods of securing performance of the functions of
the Director. Section 2 provides that a permanent Director shall be appoint-
ed by the commission," whereas "the commission may appoint an acting
director for not more than six months." (Emphasis supplied.) Read togeth-
er, these provisions impose an affirmative duty upon the Commission to ap-
point a permanent Director and permit the appointment of an Acting Direc-
tor only as a temporary measure ("for not more than six month") to allow
time for the Commission to select a new permanent Director.
This conclusion is borne out by an examination of other provisions of G.
160 P.D. 12
L. c. 13, § 2 and related statutes. The Director is "the executive and admin-
istrative head" of the Division of Civil Service. G. L. c. 13, § 2. He has
broad powers in the administration and enforcement of the civil service
laws, many of which may be exercised without regard to the wishes of the
Commission. G. L. c. 31, §§ 2A, 10. See Moore v. Civil Service Commis-
sion, 333 Mass. 430. Because of the importance and sensitivity of this posi-
tion, G. L. c. 13, § 2 requires that ray permanent Director appointed by the
Commission "shall be a person familiar with the principles and experienced
in the methods and practice of personnel administration." In addition, § 2
establishes a detailed procedure for selection of the Director should the
Commission "in its discretion restrict appointments ... to persons passing a
competitive examination . . . ." According to this procedure, the selection of
the Director is made through an examining committee of three experts in
the field of personnel administration. These statutory qualifications and
selection procedures reflect a clear legislative recognition of the need for a
highly qualified person as permanent Director.
There are, on the other hand, no statutory standards of expertise or selec-
tion procedures for an Acting Director. To permit the contemplated exten-
sion of the Acting Director's appointment would therefore be tantamount to
reading those standards and procedures out of the statute. This could hardly
have been the legislative intention. Rather, the absence of statutory detail
on the selection of an Acting Director suggests that the General Court re-
garded this position as a mere "stop gap," to permit the continued operation
of the civil service system while a qualified permanent Director is being
sought. Accordingly, I conclude that the time limitation on the appointment
of an Acting Director represents a legislative determination that six months
should afford the Commission sufficient time to complete the selection proc-
ess involved in obtaining a new permanent Director.
It is therefore my opinion that the appointment of an Acting Director of
Civil Service may not be extended beyond the six-month period prescribed
inG. L. c. 13, § 2.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 62. January 16, 1968.
Honorable John F. X. Davoren, Secretary of the Commonwealth
Dear Sir: — You have asked my opinion on certain questions relating to
your powers and duties in respect to the approval of the use of an electronic
voting system by the town of Belchertown under the provisions of c. 564 of
the Acts of 1967, amending G. L. c. 54 so as to permit the use of electronic
voting systems.
You state that the use of the system, approval of which is requested by
the town, would involve the counting of the ballots outside the limits of the
town in a computer in the neighboring (but not adjacent) town of South
Hadley, and you ask, in effect, if you may legally and constitutionally ap-
prove the use of a system which involves the counting of ballots outside the
territorial boundaries of the town.
Chapter 564 of the Acts of 1967 is entitled "An Act authorizing the use
P.D. 12 161
of electronic voting systems in primaries, preliminary elections and elec-
tions." It amends G. L. c. 54 to provide for the designation of tabulation
centers, where the ballots are to be counted (§ 5 inserting § 33F in G. L. c.
54) and provides that "Sealed and locked ballot or card carrying cases shall
be under the constant control and supervision of the precinct warden and
clerk and accompanied by police guard during the transportation of said
ballot or card carrying cases to the tabulation center, within or outside the
municipality." (Emphasis supplied.) (§ 14 inserting § 105A in G. L. c. 54.)
It is in relation to this provision that you ask:
" 1 . Could the ballots cast by the voters of the town of Belchertown at
the coming town election be constitutionally counted outside the
geographical limits of the town?
"2. Could ballots cast by the voters of Belchertown at a state or presi-
dential primary or state election be constitutionally counted at a
computer center outside the town?
"3. What powers, if any, would the election officers of Belchertown, ap-
pointed by the town's selectmen, retain outside of the town?
"4. What jurisdiction would the police officers of Belchertown have
concerning custody of the ballots and the enforcing of the lawful
commands of the warden and clerk at a computer center beyond the
boundaries of Belchertown?"
Since the Constitution of the Commonwealth is more explicit in its re-
quirements as to elections for state officers than it is for town officers, I will
consider your second question first.
The Constitution, Part 2, c. 1,^2, Art. 2, provides that votes for state
senators shall be cast at town meetings and shall be sorted and counted "in
open town meeting." It also provides that votes for Governor shall be cast at
town meetings and that "the town clerk . . . shall, in open town meeting, sort
and count the votes . . . ." Ft. 2, c. 2, ^ 1, Art. 3. Like provisions apply to
the return of votes for the election of the Lieutenant Governor, Councillors,
Secretary, Treasurer, Auditor and Attorney General. Ft. 2, c. 2, § 2, Art. 1 ;
Arts. 1 6 and 1 7 of the Amendments.
The original provisions requiring the sorting and counting of votes in
open town meeting have never been specifically repealed since their adop-
tion in 1 780, although the time of the election, the length of terms of office
and the qualifications of voters have been changed by amendment from time
to time.
While the original Constitution did not specifically provide that town
meetings must be held within the territorial limits of the towns, this was the
established practice in 1780 when the Constitution was adopted. Within the
framework of this accepted practice, the Legislature in 1 785 passed the first
general legislation regulating town government by providing that town
meetings should be held "at such . . . place, //; the same town as the select-
men shall order." (Emphasis supplied.) Acts of 1785, c. 75, ^ 5. Whether
this legislation was actually required under the original Constitution need
not be determined in view of the adoption in 1 885 of the 29th Amendment
which for the first time authorized the division of towns into voting pre-
cincts and authorized the Legislature to provide "more than one place of
public meeting within the limits of each town for the election of officers un-
162 P.D. 12
der the Constitution and to provide the manner of calling, holding and con-
ducting such meetings. All provisions of the existing Constitution inconsist-
ent with the provisions herein contained are hereby annulled." (Emphasis
supplied.)
As you point out in your request for my opinion, Attorney General Ed-
ward J. McCormack, Jr. ruled in 1961 that the 29th Amendment forbids
the holding of a town meeting for election purposes outside a town's terri-
torial limits. Report of the Attorney General for the Year Ending June 30,
1962, p. 27. The only point which is raised by your question which was not
involved in that opinion is whether the counting of the vote is such an inte-
gral part of the meeting that it must also take place within the town. In my
opinion, it must.
The requirements of the Constitution that votes for the election of Sena-
tors, the Governor, Lieutenant Governor, Councillors, Secretary, Treasurer,
Auditor and Attorney General shall be sorted and counted in open meeting
implies that the sorting and counting of the votes for election to these offices
must also take place within the town, since the meeting itself must take
place there.
So far as your question relates to state or presidential primaries, these are
not specifically covered by the Constitution. However, G. L. c. 53, § 24 re-
quires that "Primaries shall be subject to all laws relating to elections and
corrupt practices so far as applicable and except as otherwise provided in
this chapter and in chapters 54, 55 and 56."
I find nothing in G. L. Chapters 53, 54, 55 or 56 which indicates that
primaries are to be treated differently from elections in respect to the proce-
dures governing the counting of votes. It is therefore my opinion that com-
puter counting of the votes in state and presidential primaries should be
conducted in the same manner as is required in counting the votes for elect-
ed state officers. This conclusion is strengthened by considerations discussed
below relating to town elections.
I now turn to your first question: whether votes at the coming election of
the town of Belchertown may constitutionally be counted outside the town.
The opinion of Attorney General McCormack cited above determined
that the prohibition against holding town meetings outside a town applied
not only to meetings to elect constitutional officers but also to meetings to
elect town officials. Report of the Attorney General for the Year Ending
June 30, 1962, p. 27. 1 concur with this conclusion. Town government and
town meetings are ancient institutions in this Commonwealth. Although not
mentioned in the early charters, town government began informally soon
after the arrival of the colonists in the 1 630's. Zimmerman, The Massachu-
setts Town Meeting, p. 6 (1967). The first meetings were held weekly or
monthly, as shown by the early town records. Id. p. 7. However, the desig-
nation of officers and the method of their election varied from town to town.
Id. p. 9. Eventually, general practices developed, leading to the adoption of
c. 28 of the Province Laws of ! 692, which recited:
"Whereas it has been a continued practice and custome in the
several towns [within] this province annually to choose select-
men . . . and other town officers . . ., be it further . . . enacted . . .
that the freeholders and other inhabitants of each town . . . shall .
. . in the month of March annually meet and convene together . . .
P.D. 12 163
and by the major vote of such assembly, choose ... a town clerk .
. . constables, surveyors of highways, tythingmen, fence viewers,
clerks of the market, sealers of leather, and other ordinary town
officers."
When the Constitution of the Commonwealth was adopted in 1 780, it did
not attempt to define the details of town government, as it did in the case of
state government. Nevertheless, it is implicit in that instrument that the
main features of town government, developed over the preceding century
and a half, were to be constitutionally protected.
Recognition of this implication is found in an Opinion of the Justices,
229 Mass. 601 , 607, which stated:
"This form of local government, [by town meeting] was the fibre
of our institutions when the Constitution was adopted. It is im-
plied whenever the word 'town' is used in that instrument. It was
held in profound esteem and was guarded with jealous care."
The foregoing Opinion of the Justices goes on to quote with approval a
description of established town meeting procedures rendered by Lemuel
Shaw, afterwards Chief Justice, in which he lists as one of the duties of the
inhabitants of a town their meeting together "for the purpose of giving their
votes for town, county. State, and United States officers." Shaw is quoted
further as stating, "But the Constitution provides that the inhabitants shall
meet and the votes be given in open town meeting; that the vote shall be
counted, sorted and declared in open town meeting, in which the selectmen
shall preside . . . ." The Justices concluded that, "The town is the unit for
voting purposes recognized by the Constitution . . . ." (Emphasis supplied.)
Opinion of the Justices, supra, 608-9.
That the main features of town meeting government have always been re-
garded as constitutionally protected is well illustrated by the fact that it was
thought necessary in 1 820 to amend the Constitution to enable the Legisla-
ture to establish city governments. (Art. 2 of the Amendments.) That
amendment first permitted the Legislature "to prescribe the manner of call-
ing and holding public meetings of the inhabitants, in wards or otherwise
for the election of officers under the constitution, and the manner of return-
ing the votes given at such meetings" provided the town had at least 1 2,000
inhabitants, and then only on application and with the consent of the town,
given in town meeting.
The implied constitutional protection of the established method of town
elections is further illustrated by the fact that when towns increased to a
point where all the voters could not be accommodated in one voting place,
it was thought necessary in 1 885 to adopt the 29th Amendment, authorizing
the Legislature to provide "more than one place of public meeting within
the limits of each town for the election of officers under the Constitution,
and to prescribe the manner of calling, holding and conducting such meet-
ings." (Emphasis supplied.)
It is important to note that both Amendments 2 and 29 refer specifically
only to election of officers "under the Constitution." Yet, until their adop-
tion, all elections in a town, both for local and state officers, were conducted
in one place, and after their adoption, cities and towns conducted their
respective municipal elections in the same voting units as they conducted
elections for state offices.
164 P.D. 12
When voting machines were introduced, a question arose as to the consti-
tutionality of their use in the election of Representatives. Pt. 2, c. 1, § 3,
Art. 3. Nichols v. Election Commissioners, 196 Mass. 410, held them to be
unconstitutional. As a result of this decision, the 38th Amendment to the
Constitution was adopted in 1911 to provide:
"Voting machines or other mechanical devices for voting may be
used at all elections under such regulations as may be prescribed
by law: provided, however, that the right of secret voting shall be
preserved."
I find nothing in this Amendment which can be regarded as displacing the
long-established requirement that the counting of the results of an election
is to be performed within the town. The general practice since the adoption
of the Amendment has in fact been to tabulate votes within the municipality
where the votes are cast.
It is, I believe, clear as was indicated in Attorney General McCormack's
prior opinion, supra, that the essential procedures of town meeting govern-
ment have never comprehended the holding of meetings for election of
town, county, state or federal officers outside the particular town; and it
seems equally clear that the sorting, counting and declaring of the ballots
for town and county, as well as for state officers, at such local meetings held
for election purposes have always occurred, as Lemuel Shaw stated, "in
open town meeting," being regarded as integral parts of the election process
held within the town.
Since, therefore, our Supreme Judicial Court has consistently held that
the main features of town government, as it was then known, were embed-
ded in our Constitution when it was adopted and may not be deviated from
except by constitutional amendment, and since one of these main features
has been the holding of elections for town, county, state and federal officers,
and counting the votes, in open town meeting held within the limits of the
town, I am of the opinion that the ballots cast by the voters of the town of
Belchertown at the coming town election may not constitutionally be count-
ed outside the geographical limits of the town. Hence, the words "or out-
side" [the municipality] in § 14 of c. 564 of the Acts of 1967, inserting §
105 A in G. L. c. 54, are, in my opinion, violative of the present Constitu-
tion of the Commonwealth and should be disregarded by you in carrying
out your duties under the Act.
In coming to my conclusion that computers may not be employed outside
the town involved, I am not unmindful of the recent adoption of Article 89
of the Constitution, the so-called "Home Rule" amendment, annulling Arti-
cle 2 of the Amendments and substituting a new Article 2. Nothing in this
new amendment, however, evinces an intention to grant to the Legislature
or to municipalities any power to change the provisions of the Constitution
relating to elections generally that they did not already have. In fact, ^ 7 of
the amendment specifically forbids cities and towns to regulate elections
generally.
Since in my view, ballots cast by the voters of the town may not be con-
stitutionally counted outside the geographic limits of the town, it is not nec-
essary to answer your questions about the powers of police and election of-
ficers outside the town.
Very truly yours,
Elliot L. Richardson, Attorney General
P.D. 12 165
Number 63. January 18, 1968.
Honorable Edward J. Ribbs, Commissioner of Public H^orks
Dear Sir: — You have asked my opinion on whether a certain Federal-
ly aided contract for the construction of a section of Interstate Route 29 1 in
Springfield prohibits the contractor from using on the project steel milled
and fabricated in Canada. The question arises because of a doubt over
whether a Standard Specification incorporating G. L. c. 7, § 22, clause 17,
has been rendered inapplicable by a Special Provision in the contract. After
careful consideration of the matter, I am of the opinion that the Standard
Specification controls.
General Laws c. 7, § 22 provides that the Commissioner of Administra-
tion shall, subject to the approval of the Governor and Council, make rules
and regulations governing the manner of purchasing supplies, equipment
and other property for all State agencies except when the purchases are for
legislative or military purposes. The statute requires, however, that certain
rules and regulations must be adopted, among them a provision for
"A preference in the purchase of supplies and materials, other
considerations being equal, in favor, first, of supplies and materi-
als manufactured and sold within the commonwealth, with a pro-
viso that the state purchasing agent may, where practicable, allow
a further preference in favor of such supplies and materials man-
ufactured and sold in those cities and towns within the common-
wealth in which the ratio of unemployment to the total labor
force, as determined by the division of employment security, is in
excess of five and nine tenths per cent, and second, of supplies
and materials manufactured and sold elsewhere within the United
States." (Clause 17.) (Emphasis supplied.)
By G. L. c. 7, >? 23A, rules and regulations adopted under the foregoing
clause 1 7 "shall, so far as may be approved by the governor and council,
apply to the purchase by contractors of supplies and materials in the execu-
tion of any contract to which the commonwealth is a party for the execu-
tion, reconstruction or repair of any public work; and there shall be inserted
in any such contract a stipulation to that effect."
It appears that rules incorporating clause 17 have been adopted; and it
also appears that, consistently with these rules, the Department of Public
Works in its Standard Specifications for Highways and Bridges, 1965 Edi-
tion, (the so-called "Green Book") has included the following clauses,
which are the third and fourth clauses in Article 41 of the Green Book:
"Chapter 7, Section 22, Clause 17, of the General Laws, as
amended, shall apply to the purchase by the Contractor of sup-
plies and materials to be used in the execution of this contract.
"The rules referred to [the rules of the Commissioner of Ad-
ministration] require a preference in the purchase of supplies and
materials, other considerations being equal, in favor first, of sup-
plies and materials manufactured and sold within the Common-
wealth, and second, of supplies and materials manufactured and
sold within the United States . . . ." (Emphasis supplied.)
The contract in question. No. 1 2420, in its "Instructions to Bidders" stat-
166 P.D. 12
ed that the " 'General Requirements and Covenants', under Division I of
the 1965 Standard Specifications for Highways and Bridges, shall constitute
the 'Instructions to Bidders.' " (It appears to be undisputed that Article 41
is in Division I.) The contract provided in clause 2 of its formal statement
of the parties' obligations that the contractor was to perform the work "in
strict conformity with the provisions herein contained and of the Notice to
Contractors, Proposal and Special Provisions hereto attached, and the
Standard Specifications for Highways and Bridges adopted by the Commis-
sioners of Public Works under date of August 4, 1965, on file at the office
of said Department of Public Works at Boston, and with the plans referred
to therein. All said plans. Standard Specifications, Special Provisions, Not-
ice to Contractors and Proposal are hereby specifically made a part of this
contract as fully and in the same effect as if the same had been set forth at
length herein."
Among the Special Provisions referred to was the following:
"NON-RESTRICTION UPON SOURCE OF MATERIALS.
(Superseding Par. 3 & 4 of Article 4 1 ) (Reference: Part II — Reg-
ulations and Standards of Bureau of Public Records, Chapter I ,
Part I — Administration of Federal Aid for Highways. Par.
1.19)
'No requirement shall be imposed and no procedure shall be
enforced by any State in connection with a project which may op-
erate (a) to require the use or provide a price differential in favor
of articles or materials produced within the State, or otherwise to
prohibit, restrict or discriminate against the use of articles or ma-
terials shipped from or prepared, made or produced in any State,
territory or possession of the United States; or (b) to prohibit, res-
trict or otherwise discriminate against the use of articles or ma-
terials of foreign origin to any greater extent than is permissible
under policies of the Department of Commerce [Transportation]
as evidenced by requirements and procedures prescribed by the
Administrator [now the Director of Public Roads. P.L. 89-670, §
3(f) (4)] to carry out such policies.' "
The foregoing clause is taken verbatim from section 1 . 1 9 of the Regulations
and Standards of the Bureau of Public Roads in the Department of Trans-
portation, 23 CFR 1.19, originally promulgated by the Secretary of Com-
merce on May 1 1, 1960 in the Federal Register, 25 F.R. 4162, and effec-
tive upon publication. 23 CFR 1.38.' It appears, however, from certain
documents which accompanied your request for my opinion that although
certain requirements or procedures have been published to carry out perti-
nent policies of the Department of Commerce (as the Department of Trans-
portation's predecessor in this respect) regarding articles or materials of for-
eign origin, these requirements and procedures have never been put into ef-
fect.
I turn now to your first question:
"Does the Special Provision on page 2 of the enclosed contract
#12420 entitled NON-RESTRICTION UPON SOURCE OF
MATERIALS (Superseding paragraphs 3 and 4 of Article 41'
lipon Ihe cslablishmenl of the Deparlment of Transportation and the transfer thereto of the Bureau of
Public Roads from the Department of Commerce, these Regulations and Standards were continued in
torce. P.L. 89-670, SS 6(a) (i). 12(a) and (b).
P.D. 12 167
prevail over Article 41 of the Standard Specifications of 1965
containing the statutory requirements of Chapter 7, Section 22,
Clause 1 7 of the General Laws?"
In my opinion, the essential issue in the present situation is not whether
the Special Provision should "prevail over" Article 41 of the Standard Spec-
ifications. Clearly, it would prevail if the Director of Public Roads had is-
sued effective requirements and procedures to carry out the policies of the
Department of Transportation, since a special provision in a contract will
control a general provision touching the same subject. Richard Clothing
Mfg. Company v. Gutstein-Tuck, Inc., 328 Mass. 386, 390. Here, however,
the central question is different. It is whether in the absence of effective
Federal requirements and procedures the Special Provision be regarded as
rendering the Standard Specifications ineffective, with the result that there
would be neither a Federal nor State provision to apply.
The Special Provision merely states that "No requirement shall be im-
posed and no procedure shall be enforced by any State in connection with a
project which may operate . . . (b) to prohibit, restrict or otherwise discrimi-
nate against the use of articles or materials of foreign origin to any greater
extent than is permissible under policies of the Department of Commerce
[Transporation] as evidenced by requirements and procedures prescribed
by the Administrator [now the Director of Public Roads] to carry out such
policies." (Emphasis supplied.) No such effective requirements and proce-
dures having been prescribed, there is no Federal restriction on the opera-
tion of applicable State requirements. This means that in the present situa-
tion paragraphs 3 and 4 of Article 4 1 continue in full force and effect.
I have not overlooked the following language in the Special Provision:
"Superseding Par. 3 & 4 of Article 41." This phrase must, in my judg-
ment, be read together with the Special Provision itself, which, as I have in-
dicated, displaces the Standard Specifications only to the extent that the
Director of Public Roads has prescribed effective requirements and proce-
dures respecting the use of articles or materials of foreign origin. Yet as al-
ready stated, it appears that no such requirements or procedures have been
made effective.
In summary, then, I answer your first question by stating that Article 41
of the Standard Specifications applies to this contract. ^
You have also asked the following two additional questions:
"Do the invitation to bid, the special provisions of the contract
and the Standard Specifications of 1 965 incorporated therein pre-
clude the Contractor from bidding and using steel manufactured
(milled) in Montreal, Canada?
"Do the invitation to bid, the special provisions of the Contract
and the Standard Specifications of 1 965 incorporated therein pre-
clude the Contractor from bidding and using steel manufactured
(milled) in the United States and fabricated in Montreal, Cana-
da?"
General Laws c. 7, § 22, clause 17 requires only that a "preference" be
given, "other considerations being equal," first, to "supplies and materials
manufactured and sold within the commonwealth," and, second, to "materi-
"No issue has been raised as to the constitutionality of clause 17 under the United States Constitution.
168 P.D. 12
als and supplies manufactured and sold elsewhere within the United States."
What other considerations may be relevant and whether such considerations
are "equal" depend on particular facts which have not been supplied.' The
contract thus does not necessarily preclude the use of Canadian steel,
whether (I) milled in Canada or (2) milled in the United States and fabri-
cated in Canada.
With regard to a possible distinction between milling and fabrication, I
find that without more particular information as to the proportions that the
milling and fabrication each bear to the end product or the total purchase
price, I am not in a position to draw any conclusion as to the possible sig-
nificance of the milling and fabrication being done in different places.
I trust that the foregoing responds to your questions.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 64. January 24, 1968.
Honorable Edward J. Ribbs, Commissioner of Public IVorks
Dear Commissioner Ribbs: — You have requested my opinion as to
whether funds raised by bonds issued by the state treasurer under St. 1 967,
c. 616 ("An Act Relative to the Accelerated Highway Program") may be
used to reimburse municipalities for consultant fees paid for the establish-
ment of school zones.
The 1967 Act authorizes your Department and the Metropolitan District
Commission to expend $300,000,000 for various highway projects (§§ 1 -6),
and provides that these expenditures shall be met by an appropriation of
$188,000,000 from the Highway Fund (^ 7) and by the issuance of bonds
in the aggregate amount of $ 1 1 2,000,000 (§ 11). Under § 6 of the Act, your
Department is required to allocate $3,000,000 "for the establishment of
school zones by cities and towns . . . ."
In a memorandum attached to your letter, the Traffic Engineer of your
Department reports that the Boston Traffic Department has advised him
that its shortage of engineering personnel would necessitate its hiring a con-
sultant in order to make the surveys required for the establishment of school
zones in the City of Boston. The Traffic Engineer's memorandum continues:
"This office has reservations in this matter of consultant fees
for School Zones, since this is a Bond Issue item which seems to
have a legislative intent to accomplish the maximum number of
safety device installations for the protection of school children
considering the amount of money allotted and the number of
schools in the commonwealth. Conceivably, the Department
could be criticized by the legislature, should consultant project
charges for Boston, or any other large city, amount to possibly
thousands of dollars and thus result in a considerable reduction in
the number of School Zones installed.
"Would consultant fees for School Zones be an acceptable charge against
•'See, generally, I'acclUi v. MctropoUtcm Districr ( ommissioii. 339 Mass. 338. 348; Report of the Attor-
ney Cieneral for the Year Ending .lime 30. 1956. p. 44; Report of the Attorney General lor the Year
Ending .hine 30, 1963, p. 157.
P.D. 12 169
the Bond Issue in view of what appears to be the legislative intent for the
use of the money allotted?"
Whether such consultant services shall be reimbursed from 1 967 bond-is-
sue funds has, in my opinion, been left by the Legislature within the sound
administrative discretion of your Department. The statute neither prevents
nor requires such reimbursement. Under St. 1967, c. 616, § 6, funds for the
establishment of school zones are allocated by your Department
" [pjursuant to the provisions of section one of this act . . . ." Section 1 of
the 1 967 Act contains a general authorization for your Department to ex-
pend funds for a variety of highway projects, and lists among these projects
"traffic studies, including the establishment of school zones . . . ." This au-
thorization applies to all funds made available under the 1 967 Act, whether
by appropriation or by bond issue.
The second paragraph of i:? 1 of the 1967 Act provides that " [fjunds au-
thorized in this section shall [with exceptions not here relevant] be subject
to the provisions of . . . [St. 1 956, c. 7 1 8, § 9 ] ." Section 9 of the 1 956 Act
("An Act Providing for an Accelerated Highway Program") defines the
types of authorized expenditures as follows:
'The cost of the work authorized in section one shall include
all project payments, property damages, expenses for consultants
and eni^ineering services, including traffic studies, and for all le-
gal and other technical and expert services, and incidental expen-
ses in connection with the projects herein authorized." (Emphasis
supplied.)
Since the above-quoted provision of the 1956 Act is incorporated by ref-
erence in the 1 967 Act, 1 conclude that your Department may, if it deems
wise, use bond-issue funds available under St. 1967, c. 616 to reimburse
municipalities for consultant fees paid by them to establish school zones.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 65. January 30, 1968.
Honorable C. Eugene Farnam, Commissioner of Insurance, Department
of Banking and Insurance
Dear Commissioner Farnam: — You have requested my opinion as to
whether the Health, Welfare and Retirement Trust Funds Board may ap-
point State Senator Vite J. Pigaga to the position of Director of that Board.
Your question arises principally because of Article 65 of the Amendments
to the Massachusetts Constitution:
"No person elected to the general court shall during the term
for which he was elected be appointed to any office created or the
emoluments whereof are increased during such term, nor receive
additional salary or compensation for service upon any recess
committee or commission except a committee appointed to exam-
ine a general revision of the statutes of the commonwealth when
170 P.D. 12
submitted to the general court for adoption." (Emphasis sup-
plied.)
In your letter you state:
"Senator Pigaga has served in the Massachusetts Legislature
since 1959. During this time, the Legislature on several occasions
voted for general across the board pay raises to all classified State
Employees. However, none of these pay raises have been voted
on during Senator Pigaga's most recent term beginning January
1967.
"The legislation creating this position was passed in 1958, and
no legislation varying the salary of this position has been passed
since said date, other than the across the board pay raises afore-
mentioned. In 1967, this position was taken out of Civil Service,
but this did not affect the salary.
"Incidentally, it is our understanding that Senator Pigaga in-
tends to resign from the Legislature upon his appointment as
Director of the Health, Welfare and Retirement Trust Funds
Board."
On the basis of these facts, you wish to know whether the 65th Amend-
ment would prevent the proposed appointment. You also seek my opinion
"as to whether or not there is any provision of law [other than the 65th
Amendment] which would prevent the Board from appointing Senator Pi-
gaga to this position . . . ."
In my opinion, on the facts presented, the 65th Amendment does not pro-
hibit Senator Pigaga's appointment as Director of your Board. The prohibi-
tion of the 65th Amendment applies only to the appointment of a legislator
"during the term for which he was elected" to an office which was created
or whose emoluments were increased "during such term . ..." I interpret
the word "term" as referring only to a particular elective term in the Gener-
al Court, rather than to a legislator's entire period of service in that body.
The 65th Amendment was approved and ratified by the people in 1918,
upon its submission by the 1917-1919 Constitutional Convention. Prior to
its adoption an almost identical prohibition on appointments of legislators
had been imposed by statute. R. L. c. 3, § 21 ; Pub. Sts. c. 2, § 33; G. S. c.
2, § 23; St. 1 857, c. 191. Attorney General Knowlton expressed the opinion
in 1 896 that the phrase "the term for which he is elected" in Pub. Sts. c. 2,
§ 33 applied only to a single elective term of office. 1 Atty. Gen., p. 347.
This view was reaffirmed in an unpublished opinion to the Governor by At-
torney General Swift dated May 14, 1912, and by an opinion of Attorney
General Boynton in 1914 (4 Atty. Gen., p. 238) — the latter two opinions
being rendered with reference to R. L. c. 3, § 21 . In a 1939 advisory opin-
ion, the Justices of the Supreme Judicial Court intimated a similar inter-
pretation of that phrase as appearing in the 65th Amendment. 302 Mass.
605, 623.
Under this interpretation, the 65th Amendment would prevent Senator
Pigaga's appointment only to an "office created or the emoluments whereof
are increased" during his present elective term — that is, the two-year term
beginning in January, 1967. From the facts you present, it appears that the
position of Director of your Board was created long before that term began.
The same is true of the various pay raises referred to in your letter. While
P.D. 12 171
the position of Director was removed from the civil service system during
the Senator's present term (St. 1967, c. 780, § 8, amending G. L. c. 31, §
5*), 1 do not think that this can be regarded as an increase in the "emolu-
ments" of office. The only incidents of the office of Director affected by the
1967 amendment were certain tenure features and other benefits and pro-
tections afforded the holder of a civil service position. Assuming (without
deciding) that these were "emoluments" of the office, the 1 967 amendment
eliminated them; it did not increase them. I therefore conclude that Senator
Pigaga's appointment as Director of your Board would not violate the 65th
Amendment.
As to your remaining question — whether such appointment would vio-
late any other provision of law — I can only answer by saying that, on the
basis of the facts you present, no statute has come to my attention which
would be violated thereby. (1 assume, as stated in your letter, that Senator
Pigaga intends to resign from the Legislature upon his appointment as
Director.)
I would, however, call your attention to the following provision in G. L.
c. 23, § lOF, under which the appointment of a Director is to be made:
"The board shall not appoint or employ any person who is an officer or
committee member of a political party." In the event that Senator Pigaga
holds any such political office, it would be necessary for him to resign the
same to make himself eligible for his proposed appointment by your Board.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 66. February 6, 1968.
Mrs. Helen C. Sullivan, Director of Registration, Department of Civil
Service and Registration
Dear Mrs. Sullivan: — You have requested my opinion as to the eligi-
bility of the public accountant member of the Board of Public Accountancy
to serve as chairman of that Board.
Under G. L. c. 1 3, § 33, the Board of Public Accountancy consists of five
members appointed by the Governor from the accounting profession, four
of whom are required to be certified public accountants and one of whom is
required to be a public accountant who is registered as such but not certi-
fied. General Laws c. 13, § 34 provides that the Board shall annually elect
its chairman.
I am of the opinion that there is no legal obstacle to the election of the
public accountant member as chairman of the Board. General Laws c. 1 3, §
34 simply directs the Board to elect a chairman "from its members." The
statute does not distinguish in this respect between the four members who
are certified public accountants and the one member who is not.
In arriving at this conclusion I am not unmindful of the following provi-
sion of G. L. c. 13, § 33:
"In any matter exclusively concerning or dealing with a certi-
■"No rule made by the [civil service] commission shall apply to the selection or appointment of . . .
"Director of health, welfare and retirement trust fimds board."
172 P.D. 12
fied public accountant, only the members of the board who are
certified public accountants shall act; in all other matters the full
board shall act."
It has been suggested that this provision would present practical difficulties
which would disqualify a public accountant from serving as the chairman.
However, any practical difficulties of that nature would not affect the legali-
ty of his election, but would rather be a factor that the members of the
Board might wish to consider in electing a chairman.
1 therefore advise you that the public accountant is legally eligible to
serve as chairman of the Board of Public Accountancy, should its members
choose to elect him.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 67. February 9, 1968.
His Excellency John A. Volpe, Governor of the Commonwealth
Your Excellency: — You have requested my opinion as to whether the
advice and consent of the Executive Council must be obtained for your ap-
pointment of a person to fill a vacancy in the office of sheriff.
General Laws c. 54, § 1 42 provides in part:
"Upon a vacancy in the office of . . . sheriff, the governor with
the advice and consent of the council may appoint some person
thereto until a . . . sheriff is qualified." (Emphasis supplied.)
However, St. 1964, c. 740, § 3 provides in part:
"Subject to section two of this act [not here pertinent] and ex-
cept as required by the constitution of the commonwealth, so
much of each provision of the General Laws ... as requires the
advice and consent of the council to any appointment in the exec-
utive department ... is hereby repealed."
The requirement that an appointment to fill a vacancy in the office of sheriff
is to be made "with the advice and consent of the council" is therefore elim-
inated if the office is in the executive department unless such advice and
consent is "required by the constitution of the commonwealth . . . ."
The term "executive department" is defined as follows in Section 1 of the
1964 statute:
"As used in this act, the phrase 'executive department' shall in-
clude, without limitation, all departments, divisions, boards, bur-
eaus, commissions, institutions, councils and offices of state gov-
ernment and of county government, and any instrumentality or
agency within or under any of the foregoing, whether or not serv-
ing under the governor or under the governor and council, and
any independent authority, district, commission, instrumentality
or agency, hut expressly excludini> therefrom the legislative and
judicial departments and any instrumentality or agency of a city
or town." (Emphasis supplied.)
P.D. 12 173
The position of sheriff is a county office and in my judgment is within the
executive department as defined above. His duties include the service and
execution of process (G. L. c. 37, § II ), the preservation of the peace (G. L.
c. 37, § 13), attendance at sessions of the Supreme Judicial and Superior
Courts (G. L. c. 37, § 16) and the supervision of county jails and houses of
correction (G. L. c. 1 26, § 1 6) — all of which are functions of an executive
character, rather than legislative or judicial. The majority of a sheriffs
functions can be performed either in person or by deputies. The fact that
some of the duties of his office are closely related to the courts does not
make him a judicial officer. See Commonwealth v. Connollv, 308 Mass.
48 1 , 490.
Nor, in my opinion, does the Constitution of the Commonwealth require
Council approval for the appointment of a sheriff. The Constitution does
require that appointments of "judicial officers" must be submitted to the
Council (Pt. 2, c. 2, § 1, Art. IX). As recently as last May, the Supreme
Judicial Court, in upholding the action of a county retirement board in re-
moving a deputy sheriff from office, rejected a contention by the deputy that
since sheriffs and their deputies are required to attend sessions of the Supe-
rior Court, they are to be regarded as judicial officers and thus outside the
removal jurisdiction of an executive agency. The Court said:
"As the plaintiff [the deputy sheriff] concedes in his brief,
there is a distinction between 'judicial officers whose sole function
is to determine rights and duties . . . |and| '■■- another class of offi-
cers to carry into effect the decisions and decrees made by the
courts.' The latter class of officer is certainly not a 'judicial offi-
cer' within the meaning of Part 2, c. 2, v^ 1 , art. 9, . . . of the Mas-
sachusetts Constitution . . . ." Burnside v. Bristol Conntv Board
of Retirement. 1967 Mass. Adv. Sh. 779, 780.
The foregoing statement applies as fully to sheriffs as to their deputies. I
therefore conclude that a sheriff is not a "judicial officer" within the mean-
ing of the above-cited provision of the Massachusetts Constitution.
It is therefore my opinion that St. 1964, c. 740, § 3 applies to appoint-
ments to the office of sheriff, and that you may accordingly appoint an indi-
vidual to fill a vacancy in that office without the advice and consent of the
Executive Council.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 68. February 15, 1968.
Mr. J. William Belanger, Director, Division of Employment Security
Dear Mr. Belanger: — You have asked my opinion on whether you
may lawfully comply with a request of the Civil Rights Commission of the
United States Department of Justice that you disclose to the Commission
certain records of the Division of Employment Security. You state that the
Commission desires to obtain from the Division a list of employers.
"Against this list," you state, "it [the Commission] would review the data
on job referrals and placements in order to ascertain whether there might be
Brackets in original
174 P.D. 12
a possibility of discrimination against minority groups." It appears from an
enclosure with your letter that the information is sought in connection with
investigations being made by the Department of Justice under Title VII of
the Civil Rights Act of 1964.
It is my opinion that you may lawfully make the requested disclosure. In-
deed, in my view you are required to do so. Your authority and duty in this
regard are derived from the Commonwealth's acceptance in 1935 (St. 1935,
c. 479, § 6) of the Wagner-Peyser Act enacted by Congress in 1933. (48
Stat. 1 1 3, 29 U.S.C. § 49, et seq.) This act established a bureau known as
the United States Employment Service (29 U.S.C. § 49), which was given
the responsibility, among other things, of assisting in the establishment and
maintenance of systems of public employment offices in the several states
(29 U.S.C. § 49b). Provision was made for the granting of Federal funds "in
such amounts as the Secretary [of Labor] determines to be necessary for
the proper and efficient administration of [the] public employment offices"
which the States themselves might establish (29 U.S.C. § 49d). To be eligi-
ble for a grant, however, a State was required to accept the Act (29 U.S.C. §
49c), as Massachusetts has done, and to "designate or authorize the erection
of a State agency vested with all powers necessary to cooperate with the Un-
ited States Employment Service . . . ." (29 U.S.C. § 49c.)
The same act in which the Commonwealth of Massachusetts accepted the
Wagner-Peyser Act established in the Division of Employment Security,
"subject to the supervision and control of the Director of Employment Secu-
rity, a [bureau] of public employment offices," and designated it as "the
state agency for co-operation with the United States Employment Service
under ... the Wagner-Peyser Act, ... [to] have all the powers of such an
agency as specified in said act." St. 1935, c. 479, § 4, inserting, among oth-
er provisions, G.L. c. 23, § 91. (Amendments indicated by brackets.)
The Wagner-Peyser Act authorized the Federal agency head, now the
Secretary of Labor, "to make such rules and regulations as may be neces-
sary to carry out the provisions of [the Act]." (29 U.S.C. § 49k.) Under
this authority, the Secretary has promulgated regulations which are now
found in 20 CFR, Chapter V. These regulations include a requirement,
which I assume has been met in this case, that each State will " [s]ubmit a
statement that the State agency will adhere to the basic standards set forth
as United States Employment Service policies and policies of the Secretary
of Labor in the Employment Security Manual, and will maintain an organi-
zation and procedures necessary to carry out effectively such policies." 20
CFR 603.4(a).
The "Policies of the United States Employment Service" are set forth in
20 CFR Part 604, and include the following:
"§ 604. 1 6 Disclosure of information
It is the policy of the United States Employment Service to
permit disclosure of information from the files and records of the
employment service:
(0 To all governmental authorities, such as antidiscrimination
and fair employment practice authorities, whose functions will
aid the Employment Service in carrying out an amplified and
P.D. 12 175
more effective placement service, including information relating
to fair employment practices."
The Employment Security Manual, referred to above in 20 CFR 603.4(a)
contains a like provision. Part II, § 050 IF. In addition the Manual provides
in part:
"The disclosure of information obtained in the course of the
regular operation of the employment service system to National,
State, or local governmental agencies, including information re-
lating to fair employment practices, is 'necessary for the proper
and efficient administration of the public employment offices' as
that term is used in the Wagner-Peyser Act ....
"Fair employment practice and antidiscrimination authorities,
through their activities, help the Employment Service to perform
its placement functions more effectively. Such authorities, wheth-
er established by legislation or by executive action of duly consti-
tuted officials on national. State, or local government levels, are
governmental authorities within the meaning of the policy. State
employment security agencies, therefore, as a matter of proper
and efficient administration of their public employment offices,
shall disclose to these authorities information concerning employ-
ers' job orders containing discriminatory specifications with res-
pect to such nonperformance factors as race, color, creed, or na-
tional origin ... In addition, other kinds of information which
have been obtained in the course of regular operation of the em-
ployment service system shall be furnished to these agencies upon
their request . . . ."
Having accepted the Wagner-Peyser Act and having bound itself to ad-
here to the policies of the United States Employment Service in its adminis-
tration of the Act, the Commonwealth, and the Division of Employment Se-
curity as its representative, are, in my judgment, committed to comply with
the foregoing provisions of the Employment Security Manual. The Civil
Rights Commission clearly is the kind of "antidiscrimination authorit[y]"
to which the Division must make disclosure.
Nothing in G. L. c. 1 5 1 A, § 46 diminishes or qualifies the Division's ob-
ligations in this regard. Section 46 provides that information secured pur-
suant to c. 1 5 1 A, which pertains to employment security, "shall be confi-
dential and for the exclusive use and information of the division in the dis-
charge of its duties hereunder." Section 46 provides, with certain exceptions
not here relevant, that such information shall not be admissible in any pro-
ceeding, and it also states that "Whoever, except with authority of the direc-
tor or pursuant to his rules and regulations, or as otherwise required or au-
thorized by law, shall disclose the same, shall be punished by a fine of not
more than one hundred dollars or by imprisonment for not more than six
months, or both; provided that nothing herein shall be construed to prevent
the director from complying with the provisions of section sixty-four . . . ."
(Emphasis supplied.) (Section 64 authorizes disclosure of specific kinds of
information to Federal authorities. We need not decide, however, whether
the information requested in the present situation comes within the particu-
lar items described, since your authority and duty to disclose the informa-
tion does not depend on that section.)
For the reasons already stated, I am of the opinion that your obligations
176 P.D. 12
under the Wagner-Peyser Act bring the request within the quoted clause in
i^ 46 relative to disclosure when "required or authorized by law." This con-
clusion is strengthened by the fact that § 46 was enacted in 1935 as part of
the same legislation (St. 1935, c. 479) by which the Commonwealth accept-
ed by the Wagner-Peyser Act. I believe that the Legislature intended all sec-
tions of the statute to be construed consistently with the Commonwealth's
obligations to the Federal government inhering in the acceptance of the
Act.
In summary, then, I advise you that you are both authorized and required
to make the requested disclosure to the Civil Rights Commission.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 69. February 23, 1968.
Hon. Robert L. Yasi, Chairman, Water Resources Commission
Dear Mr. Yasi: — You have requested my opinion as to whether a per-
mit must be obtained from the Division of Water Pollution Control under
G. L. c. 21, ^ 43 (inserted by St. 1966, c. 685, ^ 1) for the construction of
an extension to feed an existing sewerage system which now discharges into
the waters of the Commonwealth.
General Laws c. 2 1 , § 43, so far as material, provides:
"No person shall make or permit a new outlet for the dischari^e
of sewage or industrial waste or wastes, or the effluent therefrom,
into any of the waters of the commonwealth . . . without first ob-
taining a permit, which the director [of the division of water pol-
lution control] is hereby authorized to issue subject to such con-
ditions as he may deem necessary to insure compliance with the
standards established for the waters affected. Whoever violates
this section may be enjoined from continuing such violation, as
provided in section forty-four." (Emphasis supplied.)
The issue raised is whether the point at which the sewer extension empties
into the sewer system — as distinguished from the point at which the system
empties into a watercourse — is an "outlet for the discharge of sewage . . .
into any of the waters of the commonwealth . ..." I am of the opinion that
it is.
The word "outlet" is commonly understood as referring broadly to "a
means of exit or escape." Webster's I'hird International Dictionary (1964),
p. 1602. Since no contrary intention appears, I conclude that this is the
sense in which the word is used in G. L. c. 2 1 , § 43. See G. L. c. 4, i^j 6, cl.
Third. Thus, the point of connection between the extension and the sewer-
age system is just as much an "outlet for the discharge of sewage" as the
point of connection between the sewerage system and the watercourse.
Likewise, both types of outlets have the effect of discharging sewage
"into . . . the waters of the commonwealth" — the only difference being that
sewage from the extension reaches those waters indirectly. There is nothing
in the language of ^^ 43 to restrict its application to outlets discharging sew-
age directly into the waters of the Commonwealth, and, in my opinion, no
reason to infer that any such restricted meaning was intended.
P.D. 12 177
Indeed, the purpose of § 43 would be largely frustrated if its application
were confined to outlets emptying directly into Commonwealth waters. Sec-
tion 43 is a part of the so-called "Massachusetts Clean Waters Act" (G. L.
c. 21, § 50), enacted by St. 1966, c. 685 in order to establish the legal
machinery for ridding our waters of pollution. The Act creates the Division
of Water Pollution Control to administer its provisions. G. L. c. 21, § 26.
One of the Division's principal responsibilities is to " [ajdopt standards of
water quality which shall be applicable to the various waters or portions of
waters of the commonwealth, and a plan for the implementation and en-
forcement of the standards so adopted for the various waters." G. L. c. 21,
i? 27(4). The purpose of G. L. c. 21, § 43 is, by its own terms, "to insure
compliance with the standards established for the waters affected." The ex-
tension of an existing sewer system can produce as much of a pollution
problem as the construction of an additional outlet between the system and
a waterway. Thus, the Division of Water Pollution can "insure compliance"
with its water-quality standards only if both types of outlets are subject to
the restrictions of § 43.
it is therefore my opinion that where a sewerage system discharges sew-
age into the waters of the Commonwealth, no extension of that system
may be constructed without a permit from the Division of Water Pollution
Control under G. L. c. 2 1 , i^ 43.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 70. February 26, 1968.
Honorable C. Eliot Sands, Commissioner of Probation
Dear Mr. Sands: — As Commissioner of Probation, you have requested
my opinion on the following questions:
"( 1 ) Does the Committee on Probation have the authority to bar or limit
political acitivity by persons who continue to hold their positions as
probation officers?
"(2) Does the Commissioner of Probation have such authority?
"(3) If the answer to either of the questions above is in the affirmative,
what steps are necessary to require the resignation or discharge of a
probation officer who persists in political activity from which he
has been barred in accord with an appropriately promulgated regu-
lation on the subject?"
Accompanying your request is a draft of a regulation which you propose to
submit to the Committee on Probation. A copy is annexed to this opinion.
At the outset, there may perhaps be an issue whether the term "political
activity," by itself, has a sufficiently definite meaning to describe the pro-
scribed conduct. Cf. Commonwealth v. McCarthy, 281 Mass. 253, 259
(1932). However, since I answer question 1 in the negative, and since I also
answer question 2 in the negative (so far as the latter question relates to a
general prohibition), it is unnecessary to decide whether "political activity,"
standing alone, has the required definiteness for an enforceable standard.
178 P.D. 12
Two objectives, not always reconcilable, are of primary concern in any
consideration of the problem of political activities of public employees. As
stated in the recent report to the President and the Congress by the Com-
mission on Political Activity of Government Personnel (Arthur S. Flem-
ming. Chairman),
"First, a democratic society depends for strength and vitality
upon broadly based citizen participation in the political processes
of the Nation, and governments are responsible for granting their
citizens the constitutional rights of free speech and association.
"Second, to assure the honest, impartial, and efficient transac-
tion of the public's business, a democratic society equally needs a
government that functions with a permanent system of employ-
ment under which persons are hired, paid, promoted, and dis-
missed on the basis of merit rather than political favoritism."
In Massachusetts certain limitations on political activities have been es-
tablished by the Legislature and are now found in G. L. c. 55, §§ 11, 13
and 15. These sections bar certain appointive state and local employees
from soliciting campaign funds and from making certain political contribu-
tions. Also relevant is G. L. c. 268A, § 23, the Code of Ethics, which would
bar misuse of an employee's official position for political purposes. Viola-
tion of the Code may subject an employee to administrative discipline. See
Board of Selectmen of Avon v. Under, Mass. Adv. Sh. (1967) 909.
The powers of the Committee on Probation are contained in G. L. c. 276,
§ 99A, which provides, among other things, that the Committee shall "con-
sult with the commissioner of probation as to standards of probation work
throughout the commonwealth" and, "in consultation with the commission-
er on probation, shall establish and promulgate standards for the appoint-
ment of probation officers . . . ." The same section also authorizes the Com-
mittee, upon recommendation of the Commissioner, to "recommend to any
court of the commonwealth disciplinary action, including removal or dis-
charge for cause, with regard to any probation officer appointed by said
court, and if no action is taken by said court within thirty days, the commit-
tee on probation may take or require such action as it deems best."
The powers and duties of the Commissioner are contained in G. L. c.
276, § 99, which provides in part:
"The commissioner . . . shall establish standards for probation
work throughout the commonwealth, including methods and pro-
cedures of investigation, and shall establish and promulgate rules
concerning supervision, casework, record keeping, accounting
and caseload in all courts, subject to the approval of the commit-
tee on probation . . . ."
In addition, G. L. c. 276, § 98 provides that the Commissioner "shall have
executive control and supervision of the probation service."
With respect to the Committee on Probation, it is my opinion that the
Committee, in the exercise of its original jurisdiction, is not authorized to
impose a bar on political activity. The Committee's statutory authority to
"establish and promulgate standards for the appointment of probation offi-
cers" does not extend to the promulgation of standards governing the man-
P.D. 12 179
ner of performance of a probation officer's work after he has been appoint-
ed. It follows that the Committee has no original authority to impose either
a general or a limited bar on political activities.
As for the Commissioner, it is my opinion that his statutory authority to
"establish standards of probation work . . . [to] establish and promulgate
rules concerning supervision, casework, record keeping, accounting and ca-
seload . . . [and to exercise] executive control and supervision of the proba-
tion service" is restricted to the formulation of standards and rules which
directly relate to probation work itself and the public's confidence in the
manner in which it is performed. All political activity does not necessarily
bear that direct relationship. Particular kinds of political activities may,
however, be prohibited by the Commissioner where they would seriously
threaten the quality of probation work or the public's confidence therein.
Drawing the line between particular permitted and prohibited political
activities is beyond the scope of this opinion. Yet since you have submitted
with your request a draft regulation, it would, I believe, be appropriate for
me to comment on it so as to furnish you with a general guide in this impor-
tant matter. In my judgment the draft regulation goes further than I think
permissible. It seeks, among other things, to prohibit a probation officer
from being "an active candidate either at a party primary or at a general
election in campaigns involving issues on local or other governmental lev-
els." I believe that this restriction would be too broad for the Commission-
er, under his present authority, to impose. Although such a limitation by
him could perhaps, under some supposed set of circumstances, be regarded
as having justification, I believe that more explicit authority from the Legis-
lature is required to impose it.
The draft regulation also requires a probation officer to obtain the ap-
proval of the Commissioner of Probation as a condition of being a candi-
date for election to a Library Board, Board of Public Welfare, Board of Se-
lectmen, and certain other local bodies. If the candidacy is disapproved, the
probation officer is given a right of appeal to the Committee on Probation.
Here again, I believe that more explicit authority from the Legislature is re-
quired for the proposed regulation. Moreover, this portion of the proposed
regulation fails to prescribe the standards which the Commissioner and
Cojmmittee would be expected to apply in making their decisions.
I make the further observation that apart from the adoption of any regu-
lation, whether broad or limited, a probation officer whose political activi-
ties result in a neglect of his duties as a probation officer or otherwise con-
flict with the performance of his responsibilities would be subject to appro-
priate disciplinary proceedings, including removal or discharge, under G. L.
c. 276, 5? 99A.
Turning to your third question, it is my opinion that an answer should be
given only in relation to the circumstances of a particular case, rather than
in general terms. If such a case should arise, I would be pleased to consider
the matter at that time.
Finally, I wish to state that my views expressed in this opinion apply pri-
marily to probation officers. It may be that because of the nature of the
work of other classes of public employees or because of statutes not general-
ly applicable, stricter — or perhaps less strict — limitations on political ac-
tivity by them would be appropriate and permissible. See McAuliffe v. New
Bedford, 155 Mass. 216, 218 (note). However, a comprehensive evaluation
180 P.D. 12
of political activities by all classes of public employees is outside the scope
of this opinion.
In summary then,
(1)1 answer your first question in the negative, so far as it relates to orig-
inal authority of the Committee, as distinguished from its authority to ap-
prove regulations promulgated by the Commissioner.
(2) I answer your second question in the negative so far as it relates to a
general prohibition on political activity. With regard to specific prohibi-
tions, I am of the opinion that there is a zone of permissible prohibitions.
Definition of the limits of that zone should be made, at least in the first in-
stance, by the Commissioner, as the person who is most familiar with the
problems involved. Under G. L. c. 276, § 99, such prohibitions within the
indicated zone are subject to the approval of the Committee on Probation.
(3) Your third question does not require an answer at this time.
Very truly yours,
Elliot L. Richardson, Attorney General
Draft of a regulation which is to be proposed to Committee on Probation.
A probation officer, while so employed, shall not be an active
candidate either at a party primary or at a general election in
campaigns involving issues on local or other governmental levels.
If probation officers, while so employed, seek elected membership
to a Library Board, Board of Public Welfare, Board of Select-
men, Board of Health, School Committee, or other similar civic
body, when, under the circumstances such participation in civic
affairs by members of the probation service would be desirable,
such probation officers must bring the individual case to the at-
tention of the Commissioner of Probation for his consideration in
advance of filing candidacy in the election involved. The Com-
missioner has discretion to approve or disapprove such candida-
cy; in the event that the Commissioner disapproves, the probation
officer who feels himself aggrieved by such disapproval may ask
for a final determination by the Committee on Probation. If a
probation officer, while so employed, becomes a candidate for
office contrary to the determination of the Commissioner, or, of
the Committee on Probation on appeal, he must resign. Failure to
resign under such circumstances shall be construed as cause for
dismissal under General Laws, Chapter 276, Section 99A.
Number 71. March 12, 1968.
Dr. John W. Lederle, President, University of Massachusetts
Dear Doctor Lederle: — You have requested my opinion as to whether
the Board of Trustees of the University of Massachusetts, acting on behalf
of the Commonwealth, has the power to take land in the City of Worcester
by eminent domain, as a site for the University of Massachusetts Medical
School.
While no power of eminent domain is conferred upon the Trustees by the
General Laws, you call attention to St. 1965, c. 847 and St. 1967, c. 276, as
P.D. 12 181
possible sources of this power with respect to the land in Worcester re-
quired for the Medical School. These are essentially appropriation statutes,
to provide funds for the planning, development and construction of the
School. According to your letter, "[i]t may be assumed that of the funds
thus appropriated an amount is available sufficient to pay the damages in-
curred by any person in consequence of a taking of land in said city for such
purpose."
I am of the opinion that the statutes referred to do give the Trustees pow-
er to acquire the land in question by eminent domain. Under § 2 of the
1965 statute, $1,750,000 was appropriated to the University " [fjor the ac-
quisition of certain land in the city of Worcester for a site for the medical
school, or land with buildings thereon, by purchase or by eminent domain
under chapter seventy-nine of the General Laws" and for related purposes.
(Emphasis supplied.) Section 2 of the 1967 statute, whereby $45,000,000
was appropriated to the University, contains the same language.
It may be contended that these statutes did no more than appropriate
funds for the purposes stated therein, and that the granting of the power of
eminent domain requires separate legislation to that effect. I would not
agree with that contention. Statutory draftsmanship could, of course, confine
the scope of appropriation acts to fiscal matters and could grant other pow-
ers such as that of eminent domain by separate legislation. However, an ap-
propriation act is just as much a part of our laws as any other statute, and
there is nothing to prevent the General Court from combining an appropria-
tion of funds with a grant of land-taking power in a single piece of legisla-
tion, if it chooses to do so. See Yont v. Secretary of the Commonwealth,
275 Mass. 365, 369.
The question is always one of legislative intent. To be sure, statutes in
derogation of private property rights "must be construed with reasonable
strictness . . . ." Burnham v. Beverly, 309 Mass. 388, 389. But it is equally
well established that the power of eminent domain can be conferred by nec-
essary implication as well as by express language. Id. at pp. 392-395. While
there is no statute providing that the Trustees "shall have the power of emi-
nent domain," I regard this as the necessary implication of the appropria-
tions quoted above. Otherwise, the quoted provisions would be largely
meaningless.
An examination of other provisions of these appropriation acts supports
this conclusion. For example, each of them contains an emergency pream-
ble, "to provide funds immediately" for the School. (Emphasis supplied.)
There would be no point in appropriating so many millions of dollars on an
emergency basis if further legislation were required for their expenditure.
The emergency preamble inserted in the 1967 statute, moreover, declared
that such funds were "immediately" needed "for the planning, development
and construction" of the School. (Emphasis supplied.) It must have been ob-
vious to the Legislature that no such "construction" could occur until the
site had been acquired.
It is therefore my opinion that St. 1965, c. 847 and St. 1967, c. 276 were
intended to, and do, confer power upon the Trustees of the University to
take the land referred to therein by eminent domain on behalf of the Com-
monwealth, as a site for the University's Medical School.
Very truly yours,
Elliot L. Richardson, Attorney General
182 P.D. 12
Number 72. April 1 1, 1968.
Dr. Edward R. Willett, Chairman, Consumers' Council
Dear Doctor Willett: — You have requested my opinion on the fol-
lowing questions:
" 1 . Can a city or town, pursuant to G. L. c. 1 66 or otherwise, grant a
franchise, license, or permit exclusive or otherwise, to a privately
held Cable Antennae Television (CATV) company for the installa-
tion and operation of a Cable Antennae Television (CATV)
system?
"2. Does a municipality have any power to regulate rates for Cable An-
tennae Television (CATV) as a condition of granting a franchise,
license, or permit?
"3. Does a municipality have a right to share in the profits or receipts
of the operation of a Cable Antennae Television (CATV) system
when it has granted a franchise, license, or permit to a privately
held Cable Antennae Television (CATV) company?
"4. Can the Department of Public Utilities, under existing laws, exer-
cise regulation over CATV systems?"
Your letter describes CATV systems and their operations in Massachu-
setts as follows:
"A CATV system may be described as a facility which receives
and amplifies the signals broadcast by one or more television sta-
tions and redistributes such signals by wire or cable to the homes
or places of business or subscribing members of the public for a
fee.
"The heart of a CATV system is the network which connects
the antennas and head-end equipment of the CATV operator with
the homes of his subscribers. This network which is made up of
coaxial cables, provides in effect, a private radio and T.V. spec-
trum which can be employed to relay signals entering the system
at any point for a vast number of purposes.
"There are 28 municipalities now being served by community
antenna systems in Massachusetts. Twenty-one municipalities
have issued permits where systems have not yet started construc-
tion. Three municipalities have systems that are currently under
construction. Many cities and towns have informed the Council
that they have several applications from different companies
pending before them.
"While the so-called franchises or permits heretofore granted
by local cities and towns to CATV companies vary considerably
in many respects, it has become apparent that the only statutory
legal authority being cited by cities and towns in awarding the
franchises or permits is General Laws, Chapter 166, Section 2!
and 25. Using those sections as authority, the municipalities have
been in many instances awarding franchises reserving themselves
a percentage of the annual gross receipts, charging license fees,
etc. In addition, some municipalities have included restrictions on
P.D. 12 183
the rates to be charged for the services. The Council is concerned
about the existing powers of cities and towns to award permits
under the conditions which have been included in many of the
so-called franchises or contracts. In making its determination and
recommendations the Council believes it necessary to clarify the
existing powers of cities and towns in regard to such franchises."
You have submitted to me certain typical permits, agreements and ordi-
nances from various communities in the Commonwealth. Common to all of
them is a grant of a license to construct and maintain certain lines on and
under public ways and places. In addition to the grant, one or more of the
instruments that you have furnished to me require the licensee to maintain
the lines in safe condition, to indemnify the municipality from all claims for
damages resulting from the construction or operation of the lines, to carry a
specified minimum number of television channels, to serve all users without
discrimination, and to serve municipal or charitable institutions without
charge. In one permit there is established a fixed fee for connection to each
residential user. Each permit is granted for a period of time ranging from
three years to perpetuity. One permit also provides that the permit is exclu-
sive and that the municipality will not issue any like grant to any other li-
censee. Several permits require annual payments from the licensee to the
municipality. Some payments are set at a percentage (3%, 10.15%) of the
gross receipts; another payment includes a minimum annual sum of $1500
plus $52 for each mile that the licensee's facilities occupy in the municipali-
ty-
Your first question is framed in broad terms, which do not specify the
particular provisions, other than the grant of an exclusive right, which may
be included in any particular "franchise, license, or permit." Nor does your
first question specify the details of any particular CATV system. I can ac-
cordingly answer this question only in very general terms.
So far as any permit merely grants the licensee the right to lay its televi-
sion lines under and across public ways or places, G. L. c. 166, §§ 21 and
25 authorize a municipality to make such a grant. Section 21 provides:
"A company incorporated for . . . transmission of television
signals, whether by electricity or otherwise, . . . may, under this
chapter, construct lines for such transmission upon, along, under
and across the public ways and, subject to chapter ninety-one,
across and under any waters in the commonwealth, by the erec-
tion or construction of the poles, piers, abutments, conduits and
other fixtures, except bridges, which may be necessary to sustain
or protect the wires of its lines; but such company shall not in-
commode the public use of public ways or endanger or interrupt
navigation."
Section 25 provides:
"The selectmen may, within their towns, permit telegraph, tele-
phone or television lines to be laid under any public way or place,
and may establish reasonable regulations for the erection and
maintenance of all lines for the transmission of intelligence by tel-
egraph, telephone or television, or for the transmission of elec-
tricity for light, or for heat or power except for the use of street
railway companies, by every person having authority to place
such structures in or under public ways or places, including all
184 P.D. 12
lines owned or used by said towns. Regulations established by a
city hereunder shall be made by ordinance."
The authorization in the latter section to "establish reasonable regulations"
relates, it should be noted, only to "the erection and maintenance" of the
lines. It does not extend to the general operations of the licensee or the type
of service that the licensee is to furnish to the public. In particular, it does
not provide, expressly or impliedly, for the regulation of rates, or for muni-
cipal participation in the revenues of the licensee. In my judgment, there-
fore, the grant of authority in section 25 to establish regulations is confined
to regulations for the protection of public ways and places against unreason-
able impairment or interference and the protection of the municipality and
the public against loss or damage resulting from the installation, use or
maintenance of the licensee's lines.
Your first question, as indeed all your questions, must be considered not
only with reference to sections 2 1 and 25 of chapter 1 66 but also with refer-
ence to the so-called Home Rule Amendment to the Massachusetts Consti-
tution. That Amendment, Article 89 of the Amendments, was adopted in
1966 and provided in section 6:
"Any city or town may, by the adoption, amendment, or repeal of
local ordinances or by-laws, exercise any power or function which
the general court has power to confer upon it, which is not incon-
sistent with the constitution or laws enacted by the general court
in conformity with powers reserved to the general court by sec-
tion eight, and which is not denied, either expressly or by clear
implication, to the city or town by its charter. This section shall
apply to every city or town, whether or not it has adopted a chart-
er pursuant to section three."
It does not appear, however, that any of the permits that you have submit-
ted to me as typical of town permits were granted pursuant to any by-law
adopted under section 6. Therefore, authority for those permits cannot be
based on the Home Rule Amendment; and in the absence of any existing
applicable town by-law, I cannot usefully speculate on whether a town
could, acting under the Home Rule Amendment, enlarge its powers beyond
those set forth in G. L. c. 166, §§ 21 and 25. >
I conclude, therefore, in answer to your first question that G. L. c. 166,
§§ 21 and 25, confer upon towns and cities only very limited powers, of the
nature described above; and that except for those powers, the towns and cit-
ies' have no additional powers which they may legally exercise with respect
to granting CATV franchises, licenses and permits other than such powers,
if any, as they may invoke by proper action under the Home Rule
Amendment.
I next consider your second question, relative to municipal authority to
regulate CATV rates. For the reasons already stated, G. L. c. 166, §§ 21
and 25 do not authorize such regulation. And, since action under the Home
Rule Amendment does not appear to have been taken by any town, it would
No court in any jurisdiction has yet. to niy knowledge, undertaken to define the scope and sweep of
the powers conferred upon localities by language like that in section 6 of the Home Rule Amendment.
Prior to adoption of the Amendment in l%6. no town or city of the Commonwealth could have acted
in respect of the matters set forth in your questions except to the extent that authority to do so could
he derived from specific enactments of the General Court. Vo what extent such matters as CATV reg-
ulation can now be handled by localities without further legislation is a difficult question, and one
that it is impossible to deal with other than case by case, taking into accoimt the applicable by-law or
ordinance and agreements involved, and the charter of the particular locality.
P.D. 12 185
be inappropriate for me to speculate on whether, and to what extent, a town
by a properly drawn by-law could regulate CATV rates. With respect to cit-
ies, and the possible application of the Home Rule Amendment, it is im-
possible to state a generalized conclusion. Your second question could only
be answered after detailed examination of a city's charter and the particular
rate regulations adopted by the city.
Turning now to your third question, which asks whether a municipality
has "a right to share in the profits or receipts" of a CATV system, my an-
swer is in the negative. No such right is contained in G. L. c. 166, §§ 21
and 25, nor can any such right be found in the Home Rule Amendment. In
fact, I regard that Amendment as forbidding any such participation. Section
7 of the Amendment provides in part:
"Nothing in this article shall be deemed to grant to any city or
town the power ... (2) to levy, assess and collect taxes . . . ."
A tax need not be designated as such in so many words. 'The real character
of [a] monetary exaction is the determining factor." Eaton, Crane & Pike
Co. V. Commonwealth, 237 Mass. 523, 528. Further, it should be noted that
in respect of municipal authority to assess taxes, the Home Rule Amend-
ment is only declaratory of the limitations in pre-existing law. "Cities and
towns have no inherent power to levy taxes. They can exercise only those
powers to tax which have been detegated to them by the General Court as
the representative of the Commonwealth." Duffy v. Treasurer & Receiver
General, 234 Mass. 42, 47. Board of Assessors of Quincy v. Cunningham
Foundation, 305 Mass. 411,415.
With these principles in mind, I now turn to the question whether a mu-
nicipality may require payments from a CATV licensee. It has been estab-
lished that "under a power to regulate, the requirement to take out a license
is free from legal objection, and where a license is lawfully required, a small
fee may be imposed, designed not for revenue, but to cover reasonable ex-
penses incident to the enforcement of the rule." Warhurton v. Quincy, 309
Mass. Ill, 115-116. When, however, a license fee exceeds this permitted
limit, it will be regarded as a tax, and unless otherwise authorized will be
held to be invalid. Commonwealth v. Stodder, 2 Cush. 562, 571-572. Ques-
tions of fact will arise in each case in the determination of whether the fee is
a reasonable expense incident to enforcement of a regulation, on the one
hand, or is a tax, on the other.
In those CATV licenses that you have submitted to me wherein the licen-
see is required to pay a periodic sum to the municipality, there is nothing to
indicate that the payments are required merely to cover the expense of regu-
lation. In those permits wherein the payment is simply a percentage of the
licensee's gross receipts, there is plainly no indication that the expense of
regulation bears a direct and proportional relationship to the gross receipts.
In the city ordinance, referred to above, which requires a fixed payment for
each mile of line in the municipality, there is perhaps a faint indication of
the necessary relationship between the payment and the expense of regula-
tion, yet the particular ordinance denominates the payment as a tax, "in lieu
of all other city taxes, for the privilege of using public thoroughfares of the
[city] for the purpose of carrying out this agreement." It follows that the
payment, being in fact a tax, is beyond the authority of the city to require.
Your fourth question asks whether the Department of Public Utilities
186 P.D. 12
may, under its present authority, regulate CATV systems. There being no
statute that authorizes direct regulation, the Department, in my judgment,
has no such authority, except to the extent perhaps that a CATV system
may be a part of an activity such as a telephone or telegraph service that is
already and independently subject to the Department's jurisdiction. Possi-
bly, also, the Department may have a measure of indirect jurisdiction
through supervision of the rates that a telephone company may charge a
CATV system for use of the telephone company's poles and equipment.
Without a full factual record before me, however, I believe it advisable not
to speculate at this time as to whether such jurisdiction in fact exists, and I
intimate no opinion in that regard. See generally "Federal, State and Local
Regulation of CATV — After You, Alphonse," Comment, 29 Univ. of
Pittsburgh Law Review No. 1 , Oct. 1967, pp. 109, 114-118.
Finally, although your request did not touch on the matter, I have con-
sidered the question whether the Federal Communications Commission
(FCC) has attempted to exercise jurisdiction over local CATV systems. It
appears that the FCC has adopted certain requirements relative to a sys-
tem's obligation to carry local signals and has placed certain restrictions on
duplicating local programs and bringing in distant signals. (Second Report
and Order, 31 Fed. Reg. 4540, 4548-4562, March 17, 1966). It does not
appear, however, that the FCC has yet asserted jurisdiction over state or lo-
cal franchising, or state or local regulation of rates, service or transmission
facilities. I note that litigation over the FCC's jurisdiction, within its assert-
ed domain, is now pending in two cases before the United States Supreme
Court and is awaiting decision. United States v. Southwestern Cable Co.,
cert, granted October 23, 1967, 389 U.S. 911, argued March 12-13, 1968
(36 U.S.L. Week 3364); Midwestern Television, Inc. v. Southwestern Cable
Co., cert, granted and the case argued on the same dates as the first case.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 73. April 12, 1968.
Honorable John A. Gavin, Commissioner of Correction
Dear Commissioner Gavin: — You have asked my opinion as to wheth-
er Massachusetts may under its agreement with Rhode Island, executed on
June 8, 1964 pursuant to the New England Interstate Corrections Compact
(the Compact) (St. 1962, c. 753), receive at the Massachusetts Correctional
Institution, Framingham, female prisoners in confinement in Rhode Island
while awaiting trial. See Opinion of the Justices, 344 Mass. 770, and R. I.
Pub. Laws, 1960, c. 90, §§ 1-4.
It appears from certain supplemental information which accompanied
your request that the average population of the Women's Prison in Rhode
Island is about seventeen persons daily, of whom about eight are awaiting
trial. Because of this small number of prisoners, the per capita cost of car-
ing for them is high and there is lack of an adequate staff and facilities for
proper rehabilitation of those who are serving sentences. In consequence,
Rhode Island desires to close its Women's Prison and to transfer all its pris-
oners in the Women's Prison to the Massachusetts Correctional Institution,
Framingham. You have indicated that you can "very easily" handle all the
prisoners who would be transferred under this procedure.
P.D. 12 187
After careful consideration of the matter, I conclude that the Compact
permits the transfer of those prisoners who are awaiting trial in Rhode
Island.
Article I of the Compact states its ''Purpose and Policy," declaring:
"The party states, desiring by common action to fully utilize
and improve their institutional facilities and provide adequate
programs for the confinement, treatment and rehabilitation of
various types of offenders, declare that it is the policy of each of
the party states to provide such facilities and programs on a basis
of cooperation with one another, thereby serving the best interests
of such offenders and of society and effecting economics in capi-
tal expenditures and operational costs. The purpose of this com-
pact is to provide for the mutual development and execution of
such programs of co-operation for the confinement, treatment and
rehabilitation of offenders with the most economical use of hu-
man and material resources."
Article X of the Compact states that "The provisions of this compact
shall be liberally construed. . . ."
Although the main purpose of the Compact is to deal with prisoners who
have been confined as the result of a sentence of a court upon a determina-
tion of guilt, the Compact is nevertheless, in my judgment, not restricted to
prisoners of that class. The Compact recognizes that confinement can also
result from a "commitment" as distinguished from a "conviction." Thus Ar-
ticle 11(b) defines the "Sending state" as the state "in which conviction or
court commitment was had." And Article 11(c) defines the "Receiving state"
as the state "to which an inmate is sent for confinement other than a state in
which conviction or court commitment was had." Further, the definition of
"Inmate" in Article 11(d) makes a distinction between mere confinement
and confinement under a sentence, describing an "Inmate" as "a male or
female offender who is committed, under sentence to or confined in a penal
or correctional institution except county houses of correction and jails."' I
recognize that the word "offender" in the foregoing definition may suggest
that the prisoner has been found to have actually violated the law. Yet taken
together with the other elements of the definition and the other provisions of
the Compact, this conclusion is, in my judgment, not required. To give it
such a restricted interpretation would, for example, exclude persons who
have been committed to correctional institutions for the mentally ill. Article
11(e), however, which defines an "Institution," includes in that term a "pe-
nal or correctional facility ... for the mentally ill or mentally defective."
And in view of the broad purpose of the Compact, the term "commitment"
does not, in my judgment, stop there, but rather extends to prisoners in con-
finement while awaiting trial.
Additional support for this conclusion can be found in Article IV(a)
which provides that authorities of a sending state may transfer an inmate to
the receiving state "in order to provide adequate quarters and care of [or?J -
an appropriate program of rehabilitation or treatment." The apparently in-
The exception of inmates in '■county houses of correction and jails'" appears only in the Massachusetts
version of the Compact. See Opinion of I he Jiisiiccs. 344 Mass. 770, llb-llX. and R. 1. Pub. Laws,
I960, c. 90, Article 11(d).
^The Rhode Island version of the Compact uses "or." R. 1. Pub. Laws, I960, c. 90, Article IV(a).
188 P.D. 12
tended use of the disjunctive in the foregoing provision is some indication
that merely seeking "adequate quarters and care" for an inmate would be a
sufficient reason for invoking the Compact.
I therefore conclude that transfers of prisoners awaiting trial in Rhode Is-
land may be effected under the Compact. In reaching this conclusion, I note
that in Rhode Island, unlike Massachusetts, persons awaiting trial are not
confined in county houses of correction and jails, all such institutions having
been eliminated in that state. See General Laws of Rhode Island, Title 13-
2-5. Thus the language in the Massachusetts version of the Compact exclud-
ing from its coverage offenders confined in those institutions is not applica-
ble to the transfers and does not prevent them.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 74. April 17, 1968.
Mr. William C. Maiers, Clerk, House of Representatives
Dear Sir: — By an order adopted December 28, 1967, the House of
Representatives requested my opinion on the following question:
"Does section 8 of Article LXXXIX [89] of the Amendments to
the Constitution of the Commonwealth, which authorizes the gen-
eral court to act in relation to cities and towns by special law only
on a petition filed by or approved by the voters or town meeting
of a town with respect to a law relating to that city or town, re-
quire in the case of House, No. 5350 of 1967 that the petition be
filed by or approved by the voters or the town meeting of the
towns of Windsor, Hinsdale and Dalton in view of the fact that
said bill authorizes the taking by eminent domain by the city of
Pittsfield of lands and easements in said towns?"
While House No. 5350 of 1967 is now moot, its subject matter was re-
ferred to a special committee to report during the current session, and in
consequence an answer to the question propounded will be of current value
to your honorable body. I therefore submit the following opinion.
House No. 5350 is a bill authorizing the city of Pittsfield to take by emi-
nent domain, purchase or otherwise, or divert and hold, the waters of West-
field and Hume brooks and tributaries in the town of Windsor and to take
or purchase such lands, rights of way, and easements in the towns of Wind-
sor, Dalton and Hinsdale as may be necessary for collecting, storing, pro-
tecting the purity of, and conveying such waters to Pittsfield for the purpose
of increasing its water supply. (Sec. I .) Pittsfield is specifically required and
authorized to construct a reservoir in the town of Windsor to impound "at
least seven hundred and sixty million gallons" of water and whatever con-
duits and works, including dams, that may be necessary to filter and convey
the water through the above-named towns to Pittsfield.
Prior to the adoption of Article 89 of the Amendments (the "Home-Rule
Amendment") there would have been no question of the power of the Legis-
lature to pass the measure without the consent of the municipalities affect-
ed. Many similar pieces of legislation are, in fact, now in effect in the Com-
monwealth. Article 89, however, made a fundamental change in the power
P.D. 12 189
of the Legislature to legislate for municipalities. Section 1 of Article 89 pro-
vides in pertinent part:
"It is the intention of this article ... to grant and confirm to
the people of every city and town the right of self-government in
local matters, subject to the provisions of this article and to such
standards and requirements as the general court may establish by
law in accordance with the provisions of this article."
Section 8 of Article 89 provides in pertinent part:
"The general court shall have the power to act in relation to cit-
ies 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 general 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 purposes, and to grant to these entities such
powers, privileges and immunities as the general court shall deem
necessary or expedient for the regulation 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 mat-
ters."
In my opinion. House No. 5350 is a bill "in relation to" the City of Pitts-
field and also "in relation to" the towns of Windsor, Hinsdale and Dalton,
and it is also a "special" bill within the meaning of the foregoing amend-
ment. Therefore, it can only be enacted in its present form in accordance
with the procedures set forth in clauses (1) and (2) of Section 8 of Article
89.
In determining that House No. 5350 is an act "in relation to" each of the
four named communities, I note that an ample supply of fresh water is one
of the most precious of natural resources. A city or town is empowered by
the General Laws to establish and maintain within its own borders a water
supply or a water distributing system, or both; and a town may take land
and water rights within its borders "not already appropriated for purposes
of public water supply . . . ." G. L. c. 40, §§ 39A, 39B. The present bill
would diminish the local sovereignty of Windsor over its own water supply,
and would, though to a lesser extent, diminish the sovereignty of Dalton and
Hinsdale with respect to the establishment of water distributing systems
within their respective territories. These resources and rights of the three
towns would be transferred to the control of the neighboring community of
Pittsfield. Thus it is my belief that House No. 5350, rather clearly, is legis-
lation "in relation to" each of the four named communities.
As the bill is "in relation to" each of the communities, it must be enacted
under the procedures set forth in clauses ( 1 ) or (2) unless it can be said to
be a "general" law that applies "alike to all . . . cities and towns, or to a
class of not fewer than two . . . ." In the cases of Pittsfield and Windsor, the
190 P.D. 12
bill quite obviously does not apply "alike" to the two communities. Pitts-
field is empowered to "take," or "divert and hold," the waters of two named
streams and tributaries "in the town of Windsor." This power relates specif-
ically and solely to designated activities by Pittsfield in Windsor. Thus the
procedures for enactment of special laws apply in the case of both Pittsfield
and Windsor. See 8th Report of the Special Commission on Implementation
of the Municipal Home Rule Amendment, 1967 Senate Doc. No. 1547, pp.
35-36.
The situation is perhaps less clear in the cases of the towns of Hinsdale
and Dalton. Since Pittsfield's powers in both Hinsdale and Dalton are limit-
ed to taking or purchasing lands, rights of way, and easements for, in es-
sence, piping water from Windsor to Pittsfield, it might be argued that these
powers are conferred by a "general" law applicable to a class of not fewer
than two. But I do not believe that the granting of eminent domain powers
in these two named towns to Pittsfield, as part of a special plan to provide
Pittsfield with water from Windsor, can be said to be a "general" law within
the meaning of Section 8 of Article 89. I read Section 8 as requiring not
only that a law apply to "a class of not fewer than two," but that the law be
"general" in nature. The adjective "General" connotes a law which applies
uniformly to all municipalities within a class, and indicates that there must
be some statewide concern which justifies separating that class of municipal-
ities from all other municipalities. While in some instances it mav not be
easy to distinguish "general" from "special" laws, and although a law appli-
cable only to several specifically named municipalities may not necessarily
always be a "special" law, I am of the opinion, for the reasons already stat-
ed, that the measure in question here should be regarded as such.
In reaching the conclusions set forth in this opinion I have, of course,
been mindful of the necessity for a workable solution to the water needs of
the Commonwealth's urban areas. The General Court can deal with particu-
lar cases through special legislation if all of the cities and towns in relation
to which it proposes to act request such action in accordance with Section 8,
clause (1) of Article 89. Should some communities unreasonably refuse to
share their resources with others, special laws can nevertheless be enacted
to deal with those cases if the Governor so recommends and the General
Court approves by a two-thirds vote of both branches. (Article 89, Section
8, clause 2.)
Alternatively, Section 8 of the Home Rule Amendment provides two ad-
ditional methods which the General Court may choose to utilize in dealing
with such a problem. The Legislature may pass general legislation to deal
with those questions on a uniform basis throughout the state. Alternatively,
the Legislature may choose to create a regional entity for the purpose of
furnishing water to a particular metropolitan area.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 75. May 3, 1968.
Honorable Leo L. Laughlin, Commissioner of Public Safety
Dear Commissioner Laughlin: — You have requested my opinion as to
P.D. 12 191
whether you may appoint employees of the Industrial School for Girls at
Lancaster, Massachusetts, as special police officers.
Your authority, if any, to make such appointments arises from G. L. c.
147, § lOG, whereby you "may at the request of an officer of a college,
university or other educational institution appoint employees of such col-
lege, university or other institution as special police officers." I infer from
your letter that such a request has been made on behalf of the Industrial
School for Girls. The only question, then, is whether the Industrial School
qualifies as an "educational institution" for purposes of § lOG.
The Industrial School for Girls is a public institution operated under the
supervision of the Division of Youth Service. G. L. c. 1 20, § 2. Under G. L.
c. 1 20, § 4A, the Division of Youth Service is made responsible for "all
wayward and delinquent children and habitual truants, habitual absentees
and habitual school offenders committed to the commonwealth . . . ." The
inmates of the Industrial School are girls falling into the foregoing catego-
ries. General Laws c. 1 20, § 4 provides that "the purpose ... of all educa-
tion, employment, training, discipline, recreation and other activities car-
ried on" in this and other institutions under the Division of Youth Service
"shall be to restore and build up the self-respect and self-reliance of the
children lodged therein and to qualify them for good citizenship and honor-
able employment."
As to the actual character of the Industrial School, the Division of Youth
Service has provided the following facts: there are ordinarily approximately
100 inmates, the great majority of whom are between the ages of thirteen
and seventeen; almost all of these girls are there by reason of civil (rather
than criminal) proceedings; the School offers formal education from grade
one to grade ten, and the great majority of the girls are required to attend
these classes; the permanent staff of the School includes a principal, six cer-
tified institutional teachers and two vocational training instructors; the girls
live in cottages, to which they are assigned on the basis of age; the individu-
al rooms in these cottages are kept unlocked at all times, but the cottages
themselves are locked at night; the institution as a whole is not walled in.
On the basis of these facts, I am of the opinion that the Industrial School
is an "educational institution" for purposes of G. L. c. 147, § lOG. While it
may also be characterized as a correctional institution in some respects, 1 do
not think its purposes and functions need be exclusively educational to qual-
ify under § lOG. The fact that such a substantial proportion of the Industri-
al School's activities is focused upon the formal and vocational education of
its charges — most of whom are within the age group which is subject to the
Massachusetts compulsory education requirements (G. L. c. 76, § 1) — is
sufficient, I believe, to make it an "educational institution."
Moreover, G. L. c. 120, § 2 gives the Division of Youth Service jurisdic-
tion over not only the Industrial School and other named institutions, but
also "all other institutions, except correctional institutions of the common-
wealth [emphasis supplied] , supported by the commonwealth for the custo-
dy, diagnosis, care and training" of certain classes of children. The language
of the exception (which was inserted in § 2 by St. 1955, c. 770, § 4) sug-
gests that the Legislature has regarded the Industrial School as something
other than a correctional institution. The same assumption as to the nature
of the institutions under the jurisdiction of the Youth Service Board under-
lies an Opinion of the Attorney General issued on April 20, 1949, to the
192 P.D. 12
effect that the Youth Service Board was not authorized to transfer children
under its care to the Massachusetts Reformatory for Women at Framing-
ham, on the ground that the latter is "a penal institution ... a prison." See
Report of the Attorney General for the Year Ending June 30, 1949, pp. 68,
70.
It is therefore my opinion that you may, pursuant to G. L. c. 147, § lOG,
appoint employees of the Industrial School for Girls at Lancaster as special
police officers.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 76. May 10, 1968.
Mr. Joseph Leo Driscoll, President, Southeastern Massachusetts Techno-
logical Institute.
Dear President Driscoll: — In your letter of May 8, 1968, you have
asked whether a certain publicly displayed painting by a freshman art stu-
dent on a wooden door constitutes a violation of G. L. c. 264, § 5, a crimi-
nal statute.
The facts as stated in your letter may be summarized as follows: The
door was painted in response to an art class assignment to design a flag or
banner for any country, group, organization or family as it might appear in
the year 2000. The painting contained, on one side, 1 3 alternating red and
white horizontal stripes and, in the upper left-hand corner, a rectangular
field of blue. Superimposed on the blue field was a white swastika. There
were no stars. On the reverse side of the door the number " 101 " was paint-
ed. The freshman who produced this work has asserted that it "is his per-
sonal expression as to the possible appearance of a flag of the United States
in the year 2000." He also said that the number "101" is symbolic of the
torture chamber described in the novel " 1 984" by George Orwell. The door
was hung by students against a second floor balcony wall in the lobby of the
Institution so that only the side with the stripes, blue field, and swastika was
visible. Subsequently it was removed by school authorities.
General Laws c. 264, § 5 is a penal statute. Its violation may be punished
by a fine of up to $ 1 00 or imprisonment for not more than one year,
or both. Its provisions are directed against whoever "publicly mutilates,
tramples upon, defaces or treats contemptuously the flag of the United
States . . . ., or whoever displays such flag or any representation thereof
upon which are words, figures, advertisements or designs .... Words
figures, advertisements or designs attached to, or directly or indirectly con-
nected with, such flag or any representation thereof in such manner that
such flag or its representation is used to attract attention to or advertise
such words, figures, advertisements or designs, shall for the purpose of this
section be deemed to be upon such flag . . . ." (Emphasis supplied.)
I am of the opinion, after a careful reading of the above statute, that the
conduct you have described does not constitute a violation.
P.D. 12 193
It is well established in our law that a statute which is "penal in nature . .
. is not to be enlarged beyond its plain import, and as a general rule is strict-
ly construed." Commonwealth v. Hayden, 211 Mass. 296, 297. In other
words, no matter how ill-advised and tasteless the conduct in question, it
does not violate G. L. c. 264, § 5, unless it is plainly prohibited by the lan-
guage of the statute.
The facts, which are apparently undisputed, are that the painting is an
imagined representation of this nation's flag as // might be at the end of this
century. The painting clearly does not represent our flag as it now exists,
since the stars are omitted. Thus we do not have, as required by the words
of the statute, a flag of the United States upon which are words, figures, ad-
vertisements or designs. Rather we have a painting of an imaginary flag that
somewhat resembles, but in at least one material respect differs from our
own.
A contrary interpretation of G. L. c. 264, § 5, as it applies to this situa-
tion, would raise serious questions under the First and Fourteenth Amend-
ments to the Constitution of the United States and Article XVI of the Dec-
laration of Rights in the Massachusetts Constitution.
In rendering this opinion I certainly do not suggest you and the other of-
ficials at the Institute have exceeded your authority in refusing to permit
students to hang this painted door in the lobby of the Institute, nor do I in
any way indicate approval of this object. You have broad discretion to con-
trol the display of paintings and other objects on Institute property. I rule
only, on the facts presented in your letter, that there is no basis for criminal
prosecution under G. L. c. 264, § 5.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 77. May 10, 1968.
Honorable Leo L. Laughlin, Commissioner of Public Safety
Dear Commissioner Laughlin: — You have requested my opinion as to
the eligibility of a certain member of the Uniformed Branch of the State
Police to compete in a promotional examination scheduled for May 1 1 ,
1968.
You state in your letter:
"In compliance with Chapter 22, Section 9 of the General
Laws, the Commissioner of Public Safety must post in Special
Orders a notice calling for an examination specifying a final date
for filing, which shall be not less than thirty days from the date of
notice.
"On February 1 , 1 968, said notice was posted for the examina-
tion to the rank of Sergeant, the final filing date being March 1 ,
1968. Coincidently, a member of the Uniformed Branch, with the
rank of Corporal, was suspended from duty as the result of disci-
plinary action for a total of thirty days. The suspension com-
menced February 1, 1968 and ran through March 1, 1968, the
same dates as the filing period. The officer returned to duty on
March 2, 1968.
194 P.D. 12
"Rule 10.99 of the Rules and Regulations for the Government
of the Massachusetts State Police (Uniformed Branch) states as
follows: 'Any member of the Uniformed Branch under suspension
must turn in his badge and other State Police property and equip-
ment before leaving his station. He shall be deprived of all State
Police powers and privileges and must not represent himself as a
member of the Uniformed Branch.'
"As a result of the above Rule, an administrative determina-
tion was made to deny the officer's application for promotion to
the rank of Sergeant. It has since been requested that this admin-
istrative determination be reevaluated and in light of same I
would like to have the following questions resolved:
(a) Does the Commissioner of Public Safety have the authority
to administratively determine a candidate's eligibility for
promotion?
(b) Is an officer who was suspended during the entire filing
period eligible to file an application even though State Po-
lice Rules and Regulations specifically states, 'He shall be
deprived of all State Police powers and privileges and
must not represent himself as a member of the Uniformed
Branch'?
(c) Is it within the power of the Commissioner of Public Safety
to allow this candidate to take the examination condition-
ally, pending your ruling and without waiving either the
officer's or the Department's rights in any possible future
action?"
For convenience, I shall begin with question (b). As to that question, my
opinion is that the filing of an application for promotion is not among the
"State Police powers and privileges" denied a suspended officer by Rule
10.99, and hence, that he is not rendered ineligible to apply for promotion
by reason of his suspension during the application period.
The rejection of this officer's application would affect far more than his
"powers and privileges" exercisable during the period of his suspension —
since it would effectively deny him the opportunity to obtain promotion for
a period of time thereafter. In a sense, then, his suspension would have sig-
nificant post-suspension effects. This runs counter to the concept of a sus-
pension as only "a temporary withdrawal or cessation from public work . . . ."
Mayor of Newton v. Civil Service Commission, 333 Mass. 340, 343. Bois
V. Mayor of Fall River, 257 Mass. 471, 472. I am therefore unwilling to
interpret the general reference to "State Police powers and privileges" in
Rule 10.99 as having such far-reaching consequences. Former Attorney
General Edward T. Martin has ruled that an officer under suspension con-
tinues to be a member of the State Police for purposes of the Testimonial
Dinner Law. Op. Atty. Gen. No. 66/67-95. Indeed, the Rule itself recogniz-
es that such an officer remains a "member" of the State Police for some pur-
poses: "Any member of the Uniformed Branch under suspension . . . ."
(Emphasis supplied.) I think that one of the incidents of such continuing
membership is the opportunity to apply for promotion.
Moreover, a regulation denying an otherwise qualified officer in the Uni-
formed Branch an opportunity to apply for promotion while under suspen-
P.D. 12 195
sion would, in my opinion, be invalid. The standards and procedures for
promotions in the Uniformed Branch are set out in considerable detail in G.
L. c. 22, §§ 9 - 90. Section 9 authorizes you to "promote members of
the uniformed branch . . . who are eligible for promotion . . . ." The same
section and those following specify various criteria for such eligibility. No-
where in these sections is there any provision for the addition of further
promotional prerequisites through regulations of the Commissioner. In fact,
§ 9 provides for an examination which is "open to all candidates who
have completed not less than one year of service in the next subordinate
grade . . . ." (Emphasis supplied.) I conclude from this that the Commis-
sioner has no authority, through regulations or otherwise, to impose further
requirements as to eligibility for promotion.
This conclusion is borne out by G. L. c. 22, § 9A, under which Rule
10.99 was adopted. That section provides that the rulemaking power of the
Commissioner shall be "subject to the provisions of sections 9 to nine Q,
inclusive . . . ." The quoted clause was inserted in § 9A by the same Act
which inserted §?^ 9 - 90 in the General Laws; namely, St. 1965, c. 785,
entitled "An Act Establishing the Procedure for Promotions Within the Un-
iformed Branch of the Division of State Police in the Department of Public
Safety." The whole thrust of the 1965 Act, which was the subject of much
debate, numerous drafts and a lengthy report of the Legislative Research
Bureau (1965 Senate Doc. No. 1 140), was to subject promotions to legisla-
tive control. Such control, at least in so far as it relates to standards of eligi-
bility, was, I think, intended to be exclusive.
It is therefore my opinion that the officer in question was not, by reason
of his suspension, precluded from applying to take the promotional exami-
nation scheduled for May 1 I, 1968.
Ouestion (a) has already been answered to a large extent in my reply to
question (b). For the reasons stated above, I am of the opinion that you may
determine administratively whether a candidate for promotion meets the
criteria for eligibility established by G. L. c. 22, §§ 9 - 90, but that you
have no authority to impose eligibility requirements beyond those pre-
scribed by statute.
In view of my answers to questions (a) and (b), I believe it unnecessary to
respond to question (c).
Very truly yours,
Elliot L. Richardson, Attorney General
Number 78. May 27, 1968.
Honorable Leo L. Laughlin, Commissioner of Public Safety
Dear Sir: — You have requested my opinion as to the jurisdiction of the
Department of Public Safety over the construction by the Boston Gas Com-
pany of an above-ground tank of more than 1 0,000 gallons capacity to hold
290,000 barrels of liquified natural gas (LNG) on a tract at Commercial
Point, Dorchester. Specifically, you ask whether the Department of Public
Safety or the Department of Public Utilities has jurisdiction over the con-
struction of the tank.
The various documents that have been submitted to me indicate the facts
196 P.D. 12
to be as follows. For some years, the Boston Gas Company has maintained
a large gas holder on a 36-acre tract at Commercial Point for the storage of
gas for heating and illuminating purposes. In order to meet the public's in-
creased demands for gas, the Company now proposes to construct on the
tract an LNG plant which will include the new tank as a replacement for the
existing gas holder. By a supercooling process the plant will liquify the gas
into LNG, which will then be stored in the tank until the gas is needed by
the Company's customers. At that time the LNG will be reconverted to its
original gaseous state, or regassified, and distributed to the users.
On May 16, 1967, the Company petitioned the Department of Public
Utilities under § 6 of c. 665 of the Acts of 1956, as amended, to exempt the
tract from Boston zoning restrictions so as to permit the construction of the
plant and to issue an order under G. L. c. 164, § 105 A approving the man-
ner in which, and the pressures at which, gas would be stored, transported
and distributed. D.P.U. No. 15513. After a public hearing held on June 6,
1967, at which no one appeared in opposition, the DPU, on July 20, 1967,
determined that the construction of the LNG plant was ''reasonably neces-
sary for the convenience and welfare of the public," ordered that an exemp-
tion from the zoning restrictions of the City of Boston be granted and fur-
ther ordered that the DPU "finds that the manner in which and pressures to
which gas is to be stored at, transported to and distributed from the pro-
posed liquified natural gas processing and storage plant are proper and ap-
propriate in the circumstances, and are hereby approved." In making its de-
cision the DPU stated that 'The proposed LNG plant will be designed and
constructed in accordance with this Department's Regulations Covering Li-
quified Natural Gas (LNG) Plants and Storage, Section II of D.P.U. Order
No. 1 1725-C [with a "temporary minor exception" which would be re-
moved "no later than November 1, 1970" and which in the meantime
"would pose no safety problems" to the nearest building] . Construction of
the tank has since begun under the foregoing order.
General Laws c. 1 64, § 76 provides that the DPU "shall have the general
supervision of all gas and electric companies and shall make all necessary
examination and inquiries and keep itself informed as to the condition of
the respective properties owned by such corporations and the manner in
which they are conducted with reference to the safety and convenience of
the public, and as to their compliance with the provisions of law and the
orders, directions and requirements of the department."
General Laws c. 164, § 105 A, inserted by St. 1932, c. 119, provides in
pertinent part:
"Authority to regulate and control the storage, transportation
and distribution of gas and the pressure under which these opera-
tions may respectively be carried on is hereby vested in the de-
partment [of Public Utilities]."
Other sections of G. L. c. 164 deal with other phases of the jurisdiction
of the DPU over gas companies. There are provisions relative to inspection
of records (§ 80), forms of books and accounts (§§ 81, 82), annual returns
(§§ 83, 84), rights of users of gas (§§ 92-92A), rates and charges (§§ 94
and 94F), quality of gas (§ 106), inspection of gas by the DPU (§ 109),
and use, testing, replacement and examination of meters (§§ 1 12-123).
P.D. 12 197
It was, in my judgment, the intent of the Legislature to vest in the DPU
comprehensive jurisdiction, at the State level, over gas companies and their
operations. Consonant with that intention is the provision in G. L. c. 164, §
105 A, cited above, wherein the DPU is given authority "to regulate and
control the storage, transportation and distribution of gas . . . ." (Emphasis
supplied.) Conferring regulatory jurisdiction on the DPU over the storage of
gas as well as over the transportation and distribution thereof and "the pres-
sure under which these operations may respectively be carried on" indicates
that the Legislature intended to establish, at the State level, a single regula-
tory authority for the operations of gas companies. Risks to the public are
obviously created by the equipment and facilities used for the storage as
well as for the transportation and distribution of gas, yet § 105 A would in-
dicate that no distinction was intended to be made in the DPU's responsibil-
ities for regulating these three activities.
The provisions of G. L. c. 148, § 37 do not alter this conclusion. That
section provides in pertinent part:
"No person shall construct, maintain or use any tank or con-
tainer of more than ten thousand gallons' capacity, for the storage
of any fluid other than water, unless the same is located under-
ground, without first securing a permit therefor from the commis-
sioner [of Public Safety] ."
Although the word "fluid" in its proper sense includes both gasses and liq-
uids (Webster's Third International Dictionary, 1964), its use in § 37 is, in
my judgment, confined to liquids only. This conclusion follows from the use
of "gallons" in § 37 as the unit of measure of a "fluid." A gallon is a unit of
liquid measure and is inapplicable to gasses, which in their gaseous state are
measured in terms of cubic feet.
It is most unlikely that the Legislature intended the jurisdiction of the
DPU over the storage of gas to depend on whether it was gaseous or lique-
fied. First, it appears that LNG was commercially unknown in 1932, when
G. L. c. 164, § 105 A was enacted. Further, G. L. c. 148, § 37 and the terms
"gallons" and "fluid" originated in St. 1919, c. 303, and it is reasonably
clear that LNG was wholly unknown at that earlier date.
A determination of the jurisdiction over the storage of LNG must, there-
fore, be made in the light of the fact that neither in 1919 nor in 1 932, when
the statutes in question were enacted, was LNG a substance which was spe-
cifically considered by the Legislature. Yet as between the two statutes, it is
my opinion that the later enacted statute should prevail. This result is con-
sistent with the proposition that the Legislature intended the DPU to have
comprehensive jurisdiction, at the state level, over the operations of gas
companies and it recognizes the fact that the Legislature in vesting such ju-
risdiction in the DPU could fairly have intended that such jurisdiction
should apply not only to such operations in the light of gas technology as it
existed in 1932 but also as it might develop thereafter. This result is also
consistent with the rule that a later enacted statute which specifically deals
with a given matter will prevail over an earlier statute that can be regarded
as being applicable only in a general way. See Richard Clothing Manufac-
turing Co. V. Gutstein-Tuck, Inc., 328 Mass. 386, 390. In short then it is
my conclusion that the jurisdiction of the DPU over the tank is exclusive at
the state level.
198 P.D. 12
This opinion should be regarded as concerned only with the jurisdiction
of state agencies. Whether or not the City of Boston may have certain sup-
plemental regulatory or other jurisdiction is a matter to which I have not
addressed myself and on which I do not intimate any opinion.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 79. May 28, 1968.
His Excellency John A. Volpe, Governor of the Commonwealth
Dear Governor Volpe: — You have requested my opinion on your ju-
risdiction under G. L. c. 161 A, § 5(g) relative to approving a plan of the
Massachusetts Bay Transportation Authority (MBTA) concerning transpor-
tation facilities in Mattapan. You ask me to specify, first, the conditions
precedent for the exercise of your approval powers and, second, the scope
of your authority under these powers.
You state that on February 29, 1968 the MBTA Advisory Board ap-
proved an MBTA plan relating to transportation facilities in Mattapan' and
that on March 29, the Metropolitan Area Planning Council notified the
MBTA that the plan "was not based upon the plans and programs adopted
by the Public Works Commission." On April 3, the Public Works Commis-
sion voted that the plan ". . . in so far as Public Works Commission is con-
cerned meets the requirements of [G. L. c. 1 6 1 A, § 5(g) J ." Both the Metro-
politan Area Planning Council and the Massachusetts Department of Com-
merce and Development have stated that no consultation occurred between
them and the MBTA. The Town of Milton has filed a petition in the Suffolk
Superior Court to prevent the MBTA from proceeding with its planned
project.
The pertinent statutory provisions were enacted by c. 563 of the Acts of
1964. Section 1 of the Act inserted § 3 A into G. L. c. 16, which created in
the Department of Public Works a Bureau of Transportation Planning and
Development and designated the Bureau as "the principal source of trans-
portation planning in the commonwealth . . . [toj be responsible for the
continual preparation of comprehensive and co-ordinated transportation
plans and programs for submission to and adoption by the [Public Works]
commission and for such review or consideration by other governmental
agencies as may be required by law or deemed appropriate by the
commission."
Section 1 8 of c. 563 of the Acts of 1 964 established the MBTA by insert-
ing c. 161 A into the General Laws. Section 5(g) of c. 161 A establishes a
procedure for preparing, revising and obtaining approval of MBTA pro-
The MBTA has described the plan as a '"revision" of the MBTA "Master Program" and submitted the
plan to the MBTA Advisory Board pursuant to Ci. I . c. 161 A. >; 5 (g). set forth below.
P.D. 12 199
grams for mass transportation.- Under the procedure, the MBTA is to "pre-
pare and from time to time revise its program for mass transportation." The
program "shall be based upon transportation plans and programs adopted
by the public works commission pursuant to section three A of chapter six-
teen" (see above) and is to be prepared "in consultation with" various other
agencies. The proposed program is then "subject to the approval of the
[MBTA] advisory board." If "within thirty days following such approval
any such agency shall advise the authority in writing that the program is not
based on the transportation plans and programs adopted by the said com-
mission, the program shall be subject to the approval of the governor."
Under the terms of the statute, I am of the opinion that your authority
arises upon the advisory board's approval of an MBTA program or revision
thereof, and the timely filing with the MBTA by either the Department of
Commerce and Development, the Metropolitan Area Planning Council, or
any other concerned federal or state agency, of a written notice that the pro-
gram or revision is not based on the transportation plans and programs of
the Public Works Commission. While the statute provides for consultation
between the MBTA and these agencies, it does not state that your authority
to consider the program or revision is predicated upon adequate consulta-
tion, or upon any factors other than the ones outlined above.
I turn now to the scope of your approval power once the matter comes
before you. The provisions of § 5(g) are somewhat unclear in this regard,
stating merely that if within thirty days following the Advisory Board's ap-
proval of the MBTA program a consultative agency notifies the MBTA in
writing "that the program is not based on the transportation plans and pro-
grams adopted by the said [public works] commission, the program shall
be subject to the approval of the governor."
Because a consultative agency can invoke your power only if it alleges
the program is not "based on" the Public Works Commission's plans and
programs, it can be argued that your authority is limited to resolving that
single point (and indeed, in your discretion, you may decide so to limit it).
However, I do not believe that the statute should be read as relegating the
Chief Executive of the Commonwealth to a role more appropriate for a sub-
ordinate agency head or hearing officer. Considering your constitutional po-
sition and the absence of any direct statutory limitation, I believe that the
Legislature intended you, in granting or withholding your approval, to take
into account any and all factors that you deem relevant to the public interest
and the legislative purpose. Thus 1 am of the opinion that your approval au-
thority is a discretionary executive power which you may exercise as you
deem most appropriate.
Very truly yours,
Elliot L. Richardson, Attorney General
— ■(g) The Authority shall prepare and from time to time revise its program tor mass transportation
within the area constituting the authority. Such program shall be based upon transportation plans and
programs adopted by the public works commission pursuant to section three A of chapter sixteen,
shall be prepared in consultation with the department of commerce and development, the metropoli-
tan area planning council, and such other agencies of the commonwealth or of the federal government
as may be concerned with the said program, and shall be subject to the approval of the advisory
board; provided, however, that if within thirty days following such approval any such agency shall ad-
vise the authority in writing that the program is not based on the transportation plans and programs
adopted by the said commission, the program shall be subject to the approval of the governor. The
said program shall include a long-range plan for the construction, reconstruction or alteration of facil-
ities for mass transportation within the area constituting the authority together with a schedule for
the implementation of such construction plan and comprehensive financial estimates of costs and re-
venues, and shall, so far as practicable, meet the criteria established by any federal law authorizing
federal assistance to preserve, maintain, assist, improve, extend or build local metropolitan or re-
gional mass transportation facilities or systems."
200 P.D. 12
Number 80. June 20, 1968.
Honorable Edward J. Ribbs, Commissioner, Department of Public Works
Dear Commissioner Ribbs: — You have requested my opinion as to
whether the Department of Public Works is authorized by G. L. c. 90, §
33B, inserted by St. 1967, c. 519, to reimburse cities and towns for engi-
neering costs incurred in connection with the installation of traffic control
devices at high-accident locations.
I have been advised by the Traffic Engineer of your Department that the
"engineering costs" about which you inquire are the costs of designing the
devices, and that these are costs actually incurred by the municipalities,
through the use of their own engineering facilities or those of private firms
under contract to them, and do not include the salaries or expenses of any
personnel of your Department.
On the basis of this interpretation of your question, I answer it in the af-
firmative. General Laws chapter 90, section 33B provides in relevant part
as follows:
"The state treasurer is hereby authorized to reimburse cities and
towns for not more than three quarters of the cost of installing
suitable traffic control devices at high-accident locations within
their territorial limits, in accordance with the following
procedure:
"The department [of public works] shall define high-accident lo-
cations and shall establish standards, rules and regulations, and
shall determine final allocation of funds to the cities and towns.
The amount to be paid by the treasurer to each such city and
town shall be based upon certification to the treasurer by said de-
partment of the amount due such city or town. Payments in the
amounts so certified shall be made by the treasurer out of the
Highway Fund, and shall be in addition to any other funds allo-
cated to the several cities and towns for the improvement, mainte-
nance, repair or construction of highways. Federal funds may be
substituted for the commonwealth's share whenever such funds
are available." (Emphasis supplied.)
The Budget for the 1968-1969 Fiscal Year includes an appropriation of
$1,000,000 from the Highway Fund (St. 1968, c. 380, § 2, Item 6034-
0003) " [f]or reimbursing cities and towns for the commonwealth's share of
the cost of installation of traffic control devices at high-accident locations."
(Emphasis supplied.)
The title of St. 1967, c. 5 19, whereby G. L. c. 90, § 33B was inserted in
the General Laws, indicates that its purpose was the broad one of "provid-
ing for assistance to cities and towns in order to eliminate accidents at
high-accident locations." This is confirmed by the Message of the Governor
by which this legislation was submitted to the General Court as Appendix
F. See 1967 House Doc. No. 4466, p. 10. The reference to "the cost of in-
stalling suitable traffic control devices" in § 33B is also broad, and the
terms of the appropriation quoted above indicate that it was intended to im-
plement § 33B to the fullest extent possible with the funds thereby made
available. It is obvious that traffic control devices will not "eliminate acci-
dents at high-accident locations" unless they are planned and designed to
P.D. 12 201
meet the particular needs of each specific location. Such engineering func-
tions are an integral part of the proper "installation" of these devices, and I
think that the Legislature intended to include them as such.
It is therefore my opinion that once the necessary funds become available
to your Department under Item 6034-0003 of the 1968-1969 Budget, they
may be used to reimburse cities and towns for engineering costs incurred by
them in the installation of traffic control devices at high-accident locations.
I would add, however, that this view is restricted to engineering costs in-
curred by the cities and towns themselves, and that I express no opinion as
to any costs which may be incurred by your Department or its personnel in
connection with these projects.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 81. June 24, 1968.
Honorable William C. Maiers, Clerk, House of Representatives
Dear Mr. Maiers: — By letter dated May 23, 1968, you have transmit-
ted to me a copy of an order of the House requesting an opinion on the fol-
lowing question:
"Would House Bill 4579, entitled 'An Act prohibiting the moni-
toring of employees in manufacturing establishments' if passed,
violate any provision of the Constitution of the Commonwealth
or of the United States?"
The bill to which the order refers provides:
"Any employer who subjects any person employed by him to a
monitor system or monitoring device or a closed circuit television
in a manufacturing establishment, without the express permission
of the employee, or causes, directly or indirectly, any such em-
ployee to be monitored, shall be punished by a fine of not more
than two hundred dollars."
I note that the bill provides for criminal penalties for violation of its
provisions. It is of course axiomatic that criminal statutes must not be so
vague as to violate due process of law. As stated in Commonwealth v.
Slome, 32\ Mass. 713, 7 15:
"A statute creating a crime must be sufficiently definite in speci-
fying the conduct that is commanded or inhibited so that a man of
ordinary intelligence may be able to ascertain whether any act or
omission of his, as the case may be, will come within the sweep of
the statute. It must fix with a reasonable degree of definiteness
what it requires or prohibits. It should furnish a definite standard
as a guide to determine what it denounces and condemns. A citi-
zen is entitled to protection from prosecution unless the statute on
its face penalizes the particular conduct with which he is charged.
One ought not to be compelled to specutate at his peril as to
whether a statute permits or prohibits any action which he pro-
poses to take. If the standard of guilt prescribed by a statute is so
variable, vague or uncertain that it is useless as a measure of
criminal liability, then the statute must be struck down."
202 P.D. 12
This rule was applied in the Opinion of the Justices to the House of Repre-
sentatives, 1967 Mass. Adv. Sh. 1353, wherein the Justices of the Supreme
Judicial Court declared that a proposed bill which would have prohibited
the transmission or communication of racing information was unconstitu-
tional for vagueness. In that Opinion, at page 1 358, the Justices also quoted
Connally v. General Construction Co., 269 U. S. 385, 391, wherein the Un-
ited States Supreme Court said:
" [A| statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must neces-
sarily guess at its meaning and differ as to its application violates
the first essential of due process of law."
The foregoing principle has been consistently applied by the Supreme Judi-
cial Court and the United States Supreme Court. McQuade v. New York
Central Railroad, 320 Mass. 35, 40; Commonwealth v. Carpenter, 325
Mass. 5 1 9, 52 I ; Jaquith v. Commonwealth, 33 1 Mass. 439, 44 1 -442; Cline
V. Frink Dairy Co., 21 A U. S. 445; Lanzetta v. New Jersey, 306 U. S. 451,
453; Winters v. New York, 333 U. S. 507, 515-516. By contrast, for an ex-
ample of a case which decided that the principle had not been violated, see
Commonwealth v. Brask, 1968 Mass. Adv. Sh. 881, which upheld a city or-
dinance prohibiting the unlicensed keeping of a "junk automobile" in an
open area.
In this age of technological progress and complex production, the range
of devices and procedures which might be regarded as "monitoring de-
vice [s]" or "monitor system [sj" has an indefinite extent. Production con-
trols, quality controls, time clocks to record employee attendance, mechani-
cal and electronic counters, and even personal supervision by plant foremen
might be construed as "monitoring device [s] " or "monitor system [s] ." The
kinds of employer action that might be regarded as "indirectly" causing an
employee to be monitored have a like indefinite extent.
The bill requires employers to determine, at their peril, what constitutes
a "monitor system" or "monitoring device" and what conduct "indirectly"
causes monitoring. If an employer should guess incorrectly and does not
have "the express permission of the employee," he is subject to a fine of up
to two hundred dollars. Yet the statute provides the employer with no defi-
nite standards to guide him. In my opinion, therefore, the bill, insofar as it
refers to a "monitor system," a "monitoring device," or "causes, directly or
indirectly, any such employee to be monitored" is so variable, vague, and
uncertain that it would deny due process of law. I conclude that the bill, if
passed, would be unconstitutional under Article 1 2, Part I of the Massachu-
setts Constitution and the Fourteenth Amendment of the United States Con-
stitution.
Very truly yours,
Elliot L. Richardson, Attorney General
Number 82. June 24, 1968.
Honorable Robert L. Yasi, Commissioner, Water Resources Commission
DiAR Commissioner Yasi: — You have requested my opinion as to
whether the Division of Water Pollution Control may, under the Massachu-
setts Clean Waters Act (G. L. c. 21, §§ 21-50), authorize a grant of Com-
P.D. 12 203
monwealth funds to a municipality for the construction of a waste treatment
facility to serve an industry therein.
Your letter states:
"A significant portion of the water pollution problems in Massa-
chusetts is associated with the discharge of industrial wastes
throughout the Commonwealth. It is anticipated that many of
these industrial plants will tie in to municipal systems where fa-
vorably geographically located and where the wastes are amena-
ble to mixing with domestic sewage. Nevertheless, there are many
large wet process industries in the State located in smaller com-
munities that have serious water pollution problems that may not
receive the benefit of a low-cost solution by joining municipal sys-
tems that are found in the larger metropolitan communities.
"Under the present Federal Water Pollution Control Administra-
tion grant program, a community may receive a Federal grant to
construct a waste treatment facility to serve only industrial wastes
if the community owns the land, is a taxing authority, and oper-
ates the facility.
"The policy of this Division has been to conform to these require-
ments and we have adopted the following guidelines for commun-
ities interested in constructing a joint or separate facility to serve
industry. The Division will consider a State grant application in
instances:
1 . Where the treatment facility constitutes an integral unit in
an overall regional or municipal sewerage program;
2. Where there is an approved comprehensive engineering
report considering the industrial waste problems in con-
junction with the municipal problem;
3. Where the town, city or district owns the land for the
treatment facility or facilities, is a taxing authority, and
agrees to finance the construction and construct and oper-
ate the facility or facilities; and
4. The results from a water quality standpoint would be more
beneficial from separately constructed facilities.
"Under the provisions of the Massachusetts Clean Waters Act,
Massachusetts has adopted Water Quality Standards which have
been approved by the Secretary of the Interior thus making the
State eligible for the maximum percentages of Federal Grants to
the State. Requirements for these maximum percentages under
the Federal Act are two -fold:
1 . The State must pay 25 percent of the estimated reasonable
costs of all projects for which Federal grants from the
yearly allocations are made, and;
2. The State must have enforceable water quality standards.
"Thus, it may be interpreted that to continue our program of
maximizing Federal grant contributions, general adherence to the
Federal policy appears to be necessary."
204 P.D. 12
I am of the opinion that the Division of Water Pollution Control ("Divi-
sion") may authorize a grant to a municipality under the circumstances de-
scribed in your letter, assuming compliance by the municipality with its
charter and other applicable laws in the construction of the facility. General
Laws c. 21, § 28 provides for the establishment of water pollution abate-
ment districts within the Commonwealth. Under G. L. c. 21, § 30A, the Di-
vision, with the approval of the Water Resources Commission, may author-
ize a municipality "to apply for and accept and receive financial assistance
from the commonwealth under sections thirty-one and thirty-three, for a
project or projects designated, in the same manner, to the same extent, and
subject to the same conditions as if such [municipality] were a water pollu-
tion abatement district . . . ." The state grants with which you are concerned
are those authorized by the second of the two sections referred to in the
provision just quoted, G. L. c. 2 1 , § 33:
"After a plan [for abatement of water pollution] has been ap-
proved by the division, the division shall, in accordance with cri-
teria used by the division in determining the priority of projects
for federal financial assistance, authorize and direct the district to
apply for a grant or grants by the United States government appli-
cable to the capital outlay costs of facilities included in the proj-
ect or projects contained in the district's approved plan. If a grant
anticipated from the United States government is conditioned on
a matching grant by the commonwealth, the commonwealth, in
authorizing the district's application, may undertake to provide a
grant to the extent of funds available or to be made available
therefor as hereinafter provided of whatever per cent of the capi-
tal outlay costs is required to satisfy the condition that the antici-
pated federal grant be matched." (Emphasis supplied.)
The word "facilities," as used in the foregoing statute and elsewhere in
the Clean Waters Act, is defined by G. L. c. 2 1 , § 30 to
"include facilities for the purpose of treating neutralizing, or sta-
bilizing sewage and such industrial and other wastes as are dis-
posed of by means of the facilities, including treatment or dispos-
al plants, the necessary intercepting, outfall and outlet sewers,
pumping stations integral to such facilities and sewers, equipment
and furnishings thereof and their appurtenances." (Emphasis sup-
plied.)
Reading these statutes together, I conclude that they contemplate the use
of state funds by municipalities for waste treatment facilities devoted exclu-
sively to the disposal of industrial waste. There is nothing in the Clean Wa-
ters Act to suggest that every facility constructed with state funds need be of
a general-purpose type. Indeed, the specific reference to "industrial" wastes
in the above-quoted definition of "facilities" in G. L. c. 2 1 , § 30 suggests an
intention to single out industrial waste as a particular target for legislative
attack.
Under G. L. c. 21, § 32, moreover, the plan which a water pollution
abatement district (and hence, a municipality) files with the Division as a
condition precedent to receiving state aid "shall include detail as to the
sources of pollution within the district" and "the means by which . . . such
pollution is to be abated . . . ." If, as in the cases described in your letter,
the "sources of pollution" are one or more industrial plants within the mun-
P.D. 12 205
icipality and the means of abatement is a waste treatment facility adapted to
the processing of such industrial waste, the denial of funds might leave seri-
ous gaps in the anti-pollution program of the Commonwealth. I do not think
the Legislature intended to circumscribe the availability of Commonwealth
funds in any such arbitrary manner.
For these reasons I conclude that the Division of Water Pollution Control
may, with the approval of the Water Resources Commission and subject to
the conditions imposed by G. L. c. 21, §§ 30A-33 and other applicable
provisions of law, authorize a grant of Commonwealth funds to a munici-
pality for the construction of a waste treatment facility to serve an industry
therein.
Very truly yours,
Elliot L. Richardson, Attorney General
206 P.D. 12
INDEX TO OPINIONS
AGENCY AND TOPIC OPINION PAGE
Administration and Finance, Executive Office for: 12 52
Aeronautic Commission:
Tort liability of 39 , 114
Alcoholic Beverage Control Commission:
Sales between midnight Saturday and 1:00 A.M. ... 1 32
Interstate transit of alcoholic beverages 4 39
Hearing procedure of 6 43
Civil Service, Division of:
Power of Commissioner of Corporations to transfer .13 55
Transfer of Police Sergeant 23 79
Appointment of Confidential Secretaries 49 135
MDC Exemption to Civil Service Law 56 149
Appointment of Director 61 159
Commerce and Development, Department
Renovation of State Housing Project 14 57
Public Liability Insurance on State Housing Projects 32 97
Comptroller's Division
Appropriation of Funds to MAPC 9 49
Consumers Council
Cable Antennae Television 72 182
Corporations and Taxation, Department of
Reimbursement to municipalities for loss of taxes . . 7 44
Is mobile home a trailer in Sales and Use Tax Law . . 27 89
Abington appropriation for "swimming pool" 47 132
Correction, Department of:
Transfer of Prisoners to State Hospital 8 47
Good Conduct Deductions for Parole Violator 36 111
Mass. Confinement of R.I. prisoners 73 186
District Attorney for Middlesex County
Local Police and State Property 50 36
Education, Department of 2 33
Compensation for State Employees for occasional em-
ployment
Members of Board designating alternates to serve . . 5 41
Open Meeting Law and Bargaining Sessions 28 92
Conflict of Interest 29 93
Procedure of Dismissal at Massachusetts Maritime
Academy 34 101
Residency requirements at Vocational School 43 123
Employment Security, Division of 68 173
P.D. 12 207
Governor
Appointment of District Attorney 16 63
Massachusetts Turnpike Authority 24 80
Gas Tax
Stadium Funding
Approve Out-of State Travel Expenses 31 96
Appointment Procedure of Sheriff 67 172
Massachusetts Bay Transportation Authority 79 198
Mattapan facility
House of Representatives
Massachusetts Port Authority 21 73
Air Port properties
Air National Guard
Sales and Use Tax 22 76
City of Pittsfield; Eminent Domain 74 189
Constitutionality of Monitoring Systems 81 198
Insurance, Division of:
Appoint of Director of Board of 65 169
Health, Welfare and Retirement
Lowell Technological Institute 48 134
Mental Health, Department of 53 142
57 152
Metropolitan District Commission
Power to Lease Certain Land to Private Organization 3 35
Are certain ramps "necessary approaches" to a
bridge 15 59
Contract 17 64
Bidding Procedure 20 70
Proportionate Contributions of members 33 98
Power to sell or Lease certain Lands on the Veterans
of Foreign Wars Parkway in West Roxbury 41 119
Metropolitan Water Supply Act affect on Wellesley . 51 138
Water supply of Chicopee 60
Milk Control Commission 35 109
Outdoor Advertising Board 18 66
Probation, Commission of: 70 177
Public Accountancy, Board of: 66 171
Public Health, Department of
Licensing of Nursing Homes 26 87
Public Safety, Department of
Police Powers of Certain Inspectors 37 113
Payment of Witness Fees to Police Officer 46 129
Delegate Authority of State Fire Marshal 54 143
208 P.D. 12
Industrial School for Girls 75 190
Eligibility for a Promotional Examination 77 193
New Dorchester Gas Tank 78 195
Public Works, Department of:
Decline of Kingsbury Pond 19 67
Prequalification of Demolition Contractors 44 124
Non Restriction Upon Source of Material 63 165
Reimburse Cities and Towns for Establishing School
Zones 64 168
Reimburse Cities and Towns for installing traffic
Control Devices 80 200
Records Conservation Board 40 116
Registration Division of:
Veterinary Medicine Examination 38 113
Election of Chairman of Board of Public Accoun-
tancy 66 171
Registry of Motor Vehicles
Requirements for Examination for Motor Vehicle
Examiner 30 95
Period of Time of Revocation of License to Operate .42 121
Availability of Public Records 45 126
Retirement, Board of 55 146
Saving Bank and Life Insurance, Division of 25 83
Secretary of the Commonwealth
Acceptance for filing the Articles of Organization of
a corporation 10 51
Powers and Duties Relative to Permit Use of Elec-
tronic Voting System 62 160
Southeastern Massachusetts Technological Institute 76 192
State Colleges, Division of
Mandatory Retirement of College Presidents 52 140
Acquisation of Certain Lands for Massachusetts Mari-
time Academy 58 154
University of Massachusetts 71 180
Veterans Services, Commissioner of 11 52
Veterinary, Medicine, Board of
Registration in 38 113
Water Resources Commission 69 176
Permit for Constructing An Extension of An Existing
Sewerage System
Grant Funds To Municipalities for Construction of A
Waste Treatment Facility to Serve an Industry 82 202
JUN 1974
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