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Public  Document 


No.   12 


(TtlP  Qlommnnuifaltlj  of  HUaasarljuspttfi 


REPORT 


^^.  ATTORNEY  GENERAU^ 


Year  Ending  June  30,  1970 


Publication  of  this  Document  Approved  by  Alfred  C.  Holland,  State  Purchasing  Agent. 
lM-6-7 1-049903  Estimated  Cost  Per  Copy:  $1.94 


FEB  10197^ 

STAit  nv/^oc^  bUiilON 


/970 
^^r>  (Jommonuiealtqiif  Mafisarljufietts 


Boston,  December  2,  1970 

To  the  Honorable  Senate  and  House  of  Representatives: 

I  have  the  honor  to  transmit  herewith  the  report  of  the  Department  of 
the  Attorney  General  for  the  year  ending  June  30,  1970. 

Respectfully  submitted, 

Robert  H.  Quinn 
Attorney  General 


P.D.  12  3 

(HI??  OIommoituJBaltlj  of  Masaacl^uams 

DEPARTMENT  OF  THE  ATTORNEY  GENERAL 


A  ttorney  General 
ROBERT  H.  QUINN 

First  Assistant  Attorney  General 
Joseph  J.  Hurley 


Assistant  Attorneys  General 


Ruth  I.  Abrams 
Richard  E.  Backmani^ 
Aileen  H.  Belfordis 
Mark  I.  Berson"^ 
W.  Channing  Beucler^ 
Daniel  T.  Brosnahan 
Thomas  F.  BrownelU<> 
Wayne  A.  Budd^ 
Oscar  S.  Burrows^o 
Laurence  R.  Buxbaum^ 
Eugene  R.  Capuano 
Charles  E.  Chaseio 
Lawrence  P.  Cohen 
Mark  L.  Cohen 
Neil  Colicchio^ 
George  T.  Contalonis^ 
Barry  F.  Corn^^ 
John  J.  Craven,  Jr.^ 
Albert  F.  Cullen,  Jr. 
Carmen  L.  Dursoi^ 
Bernard  J.  Dwyer^ 
Samuel  W.  Gaffer24 
David  B.  Gittelsohn 
Edward  W.  Hanley,  III15 
Robert  L.  Hermann 
George  V.  Higgins^s 
Charles  E.  Inman^ 
John  J.  Irwin,  Jr.s 
Daniel  J.  Johnedis'^ 
Harold  J.  Keohane 
James  P.  Kiernan 


Donald  Koleman 
Daniel  B.  Kulak^^ 
John  P.  Larkini 
Carter  Lee 
Arthur  P.  Loughlin<5 
Peter  F.  Macdonald^ 
Charles  M.  MacPheei2 
Bernard  J.  Manning 
Walter  H.  Mayo,  III 
James  P.  McCarthyi2 
Bruce  G.  McNeilU-* 
Charles  K.  Mone^ 
Robert  Y.  Murray 
David  G.  Nagle,  Jr. 
Lawrence  H.  Norris 
Henry  F.  O'Connell 
Paul  F.  X.  Powerie 
Joel  Pressman^i 
Glendora  M.  Putnam^^ 
Theodore  Regnante,  Sr.i^ 
Eward  L.  Schwartz^ 
William  E.  Searson,  IIP 
Thomas  A.  Sheehan 
George  W.  Spartichino 
George  A.  Stella 
Dennis  M.  Sullivan^ 
Robert  L.  SuprenanfJ^ 
Elizabeth  G.  Vervilleis 
John  E.  Walli9 
Donald  J.  Wood 
Christopher  H.  Worthingtoni2 


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


P.D.   12 


Assistant  Attorneys  General  Assigned  to  Department  of  Public  Works 


Burton  Berg2i 
Leonard  A.  Bonfantii^ 
Richard  R.  Caples^ 
Robert  W.  Coughlin 
Coleman  G.  Coyne-'* 
Thomas  J.  Crowley 
Willie  J.  Davisi5 
Samuel  R.  DeSimone^ 
Richard  T.  Dolan 
Marvin  H.  Glaseri"  24 
Paul  A.  Good2 
Robert  H.  Gordoni^ 
James  J.  Haroules^i 
Edward  D.  Hicksi^ 
Richard  W.  Hynes^ 


Daniel  J.  Leonard^'^ 
David  A.  Leone^ 
Fred  J.  Matera** 
John  H.  O'Neill" 
Charles  W.  Patterson^^ 
Alfred  R.  PodolskiiT 
Harold  Putnam-" 
Paul  E.  Ryan« 
Herbert  L.  Schultz^ 
Richard  L.  Seegel 
John  E.  Sheehy-- 
Sidney  Smookler'^ 
David  S.  Tobin^ 
F.  Dale  Vincent,  Jr. 
John  W.  Wrightie 


Assistant  Attorneys  General  Assigned  to  Metropolitan  District  Commission 

Roger  L.  Aube  John  M.  Rosens 

George  Jacobs^  Richard  A.  Savrann^''^ 

Peter  R.  Leonei^  Frederick  J.  Sheehan^ 
James  P.  McAllisteri2 


Assistant  Attorneys  General  Assigned  to  the 
Division  of  Employment  Security 


Joseph  S.  Ayoub 


Hartley  C.  Cutter 


Assistant  Attorney  General  Assigned  to  Veterans'  Division 
John  F.  Houton 

Chief  Clerk 
Russell  F.  Landrigan 

Assistant  Chief  Clerk 
Edward  J.  White 


1  Appointed 
2Appointed 
3Appointed 
4Appointed 
oAppointed 
6Appointcd 
TAppointed 
SAppointed 
9Appointed 
lOAppointed 
llAppointed 
12Appointed 


July,  1969 
August,  1969 
September,  1969 
October,  1969 
November,  1969 
December,  1969 
January,  1970 
February,  1970 
March,  1970 
April,  1970 
May,  1970 
June,  1970 


l3Terminated 
14Terminated 
ISTerminated 
leXerminated 
ITTerminated 
ISTerminated 
19Terminated 
20Terminated 
2lTerminated 
22Terminated 
23Terminated 
24Terminated 


July,  1969 
August,  1969 
September,  1969 
October,  1969 
November,  1969 
December,  1969 
January,  1970 
February,  1970 
March,  1970 
April,  1970 
May,  1970 
June,  1970 


P.D.  12  5 

STATEMENT  OF  APPROPRIATIONS  AND  EXPENDITURES 

For  The  Period 
July   1,   1969  -  June  30,   1970 

Appropriations 

0810-0000     Administration    $2,037,660. 

0811-0000     Certain  Legal  Services  10,500. 

0821-OiOO     Settlement  of  Claims  108,000. 

Total  $2,156,160. 


Expenditures 

0810-0000     Administration    $1,873,301. 

0811-0000     Certain  Legal  Services  3,222. 

0821-0100     Settlement  of  Claims 96,916. 

Total  $1,973,439. 


Income 

0801-40-01-40     Fees— Filing  Reports  $14,181.00 

Charitable  Organizations 
0801-40-02-40     Fees— Registration    3,620.00 

Charitable  Organizations 
0801-40-03-40     Fees- Professional  Fmid  Raising    100.00 

Council  or  Solicitor 
0801-69-99-40     Miscellaneous    338.64 

Total $18,239.64 

Financial  Statement  Verified  (under  requirements  of  C.  7,  S  19  GL) 
April  28,  1971. 

By  Edward  J.  Baldv/in 

For  the  Comptroller 

Approved  for  Publishing. 

M.  Joseph  Stacey 

Comptroller 


6  P.D.  12 

®I|c  (Eommomuealtlj  of  Maasacl|uaeltfl 

DEPARTMENT  OF  THE  ATTORNEY  GENERAL 

Boston,  December  1,  1970 
To  the  Honorable  Senate  and  House  of  Representatives: 

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

The  cases  requiring  the  attention  of  the  department  during  the  fiscal 
year  ending  June  30,  1970,  totaling  23,933  are  tabulated  as  follows: 

Extradition  and  interstate  rendition  128 

Land  Court  Petitions  210 

Land  Damage  cases  arising  from  the  taking  of  land  1,633 

Miscellaneous  cases,  including  suits  for  the  collection  of  money 

due  the  Commonwealth  9,020 

Estates  involving  application  of  funds  given  to  public  charities  4,154 

Workmen's  compensation  cases,  first  reports  7,317 

Cases  in  behalf  of  Employment  Security  721 

Cases  in  behalf  of  Veterans'  Division  750 

Introduction 

My  second  Annual  Report  as  Attorney  General  of  the  Commonwealth 
of  Massachusetts,  as  required  by  G.  L.  c.  30,  and  32,  encompasses  the 
fiscal  year  from  July  1,  1969  to  June  30,  1970. 

Tradition  and  notoriety  have  accustomed  us  to  view  the  Attorney 
General  as  a  negative  factor  in  governmental  life.  He  accuses  by  in- 
dictment, prohibits  by  opinion,  and  prosecutes  in  trial.  This  is  part  of 
the  job,  but  the  perspective  is  not  true  for  today.  Through  legislative 
mandate  responding  to  social  needs,  the  Massachusetts  Attorney  General 
is  much  more  a  positive  force  for  improvement  than  a  negative  factor 
inhibiting  action. 

I  have,  over  the  past  eighteen  months,  enjoyed  the  rare  privilege  of 
being  able  to  implement  through  my  present  office  programs  restive  to 
the  people's  needs,  which  I  shared  and  shaped  as  a  legislator.  My  office 
has  also  been  active  in  proposing  new  programs  for  legislative  enactment. 
In  this  regard,  my  staff  is  constantly  engaged  in  researching  and  suggesting 
amendments  or  modifications  of  present  laws,  and  in  designing  and  draft- 
ing totally  new  laws  where  necessary.  The  1970  Legislature  enacted 
twenty-four  bills  proposed  by  this  office,  and  these  new  laws  have  added 
to  the  growing  list  of  legislative  commands  which  help  give  my  office  its 
positive  direction.  (A  list  of  these  twenty-two  acts  and  two  resolves 
appears  in  the  appendix. ) 

This  positive  direction  has  been  most  obvious  and  significant  in 
consumer  protection.  In  my  term,  this  program  has  not  been  merely  one 
of  protection  but  of  advancement  of  the  buying  citizen  to  the  com- 
petitive level  of  his  selling  counterpart. 


P.D.  12  7 

The  positive  aspect  of  our  work  is  most  humanely  epitomized  by 
our  battle  against  drug  abuse.  The  focus  of  new  legislation  in  Massa- 
chusetts has  been  not  so  much  upon  the  crime  as  upon  the  human  beings 
involved  and  the  human  resources  to  be  preserved.  This  progressive 
approach  has  also  characterized  the  activities  of  our  new  Drug  Abuse 
Section  which  we  estabhshed  in  September,  1969.  This  section  headed 
by  Assistant  Attorney  General  Robert  Murray,  has  mounted  a  five- 
pronged  attack  against  drug  abuse  emcompassing  tough  enforcement, 
positive  education,  realistic  legislation,  effective  rehabilitation,  and  in- 
creased research.  The  diversity  of  our  efforts  underscores  the  com- 
plexity of  the  problems  we  face,  but  by  working  closely  with  doctors, 
educators,  researchers,  self-help  leaders,  and  other  experts  and  employees 
in  the  field  of  drug  abuse  prevention,  we  hope  to  reverse  the  rising  tide  of 
drug  abuse  in  our  communities. 

This  office  has  also  naturally  become  the  center  of  activity  for 
government's  response  to  our  most  recendy  acknowledged  peril  —  that 
to  man's  environment.  Balancing  the  economics  to  assure  a  life-support- 
ing atmosphere  is  a  particular  challenge  to  the  office  of  the  lawyer  for 
government  and  ultimately  for  the  people.  Legal  doctrine  developed  in 
different  eras,  in  response  to  different  demands,  all  too  frequently  has 
not  permitted  creative  legal  redress  of  environmental  injury.  Our 
actions  against  polluters  and  our  actions  for  clean  air  and  pure  water, 
have  been  direct  and  insistent,  and  this  office  is  now  gearing  to  intensify 
our  efforts  in  this  vital  area  of  the  environment. 

All  that  makes  up  our  environment,  however,  and  all  that  makes  up 
government,  exists  for  creation's  finest  work,  for  man  himself  and  man's 
happiness.  He  is  the  center  of  legislative  command  and  legal  implemen- 
tation. This  fact  has  remained  uppermost  in  the  minds  of  all  of  us  in  the 
Attorney  General's  office  in  the  handling  of  our  duties. 

This  concern  for  the  citizen  motivates  us  in  our  insistence  that 
government  employees  exist  to  serve  the  people  and  that  those  who 
distort  this  principle  must  not  be  tolerated.  This  principle  guides  us 
in  our  effort  to  perfect  the  institutions  that  guard  people's  lives  and 
property  through  our  Committee  on  Law  Enforcement.  It  also  spurs 
the  Attorney  General  to  live  in  his  every  official  act  the  theme  of  "Liberty 
and  Justice  for  All." 

Administration 

The  Administrative  Division  of  this  Department  underwent  consider- 
able change  during  the  year. 

Due  to  attrition,  the  staff  of  the  Division  was  severely  reduced  at 
the  beginning  of  the  fiscal  year.  Additions  were  made  during  the  Sum- 
mer and  Fall  of  1969,  and  by  January  1,  1970  the  Division  was  at  full 
strength  with  a  complement  of  twelve  attorneys  holding  the  rank  of  Assist- 
ant Attorney  General  or  Deputy  Assistant  Attorney  General  and  two 
attorneys  holding  the  rank  of  Special  Assistant  Attorney  General.  In 
view  of  the  workload  during  the  past  year,  the  number  is  less  than  we 
could  profitably  use,  but  despite  reduced  manpower  the  work  of  the 
Division  has  progressed  satisfactorily  for  the  most  part. 


8  P.D.   12 

During  the  administrations  of  prior  Attorneys  General,  the  principal 
function  of  the  Administrative  Division  has  been  the  preparation  of  the 
formal  opinions  of  the  Attorney  General  and  the  rendering  of  advisory 
services  to  constitutional  officers  and  heads  of  state  agencies  on  an 
informal  basis.  Litigation  on  the  civil  side  of  the  Courts  occupied  a 
minor  roie.  This  balance  has  now  shifted,  not  only  because  of  a  greater 
awareness  of  the  rights  of  individuals  vis-a-vis  the  state  government  and 
its  agencies  but  also  because  of  the  work  of  various  legal  assistance 
projects  and  particularly  the  Massachusetts  Law  Reform  Institute.  During 
the  past  fiscal  year,  our  work  in  the  Federal  courts  tripled  over  the 
prior  fiscal  year.  There  was  an  increase  in  litigation  in  the  state  courts, 
but  not  nearly  as  significant  as  the  increase  at  the  Federal  level. 

As  a  result,  advisory  services  took  on  a  secondary  role.  This  is  un- 
fortunate, but  inasmuch  as  litigation  involves  deadlines  which  must  be 
met,  pleadings  which  must  be  filed,  and  cases  which  must  be  tried  and 
argued,  the  litigation  cannot  wait.  With  a  fixed  staff,  priorities  were 
required  to  be  reordered,  and  accordingly  litigation  became  the  first 
priority. 

Two  significant  cases  should  be  mentioned  as  demonstrative  of  the 
increasing  litigation  workload.  In  September  and  October  of  1969,  half 
of  the  attorneys  of  the  Division  v/ere  required  to  spend  full  time  on 
research  and  preparation  of  the  briefs  in  the  case  before  the  Supreme 
Judicial  Court  which  challenged  the  Massachusetts  inquest  procedures. 
That  case  received  world-wide  attention,  and  was  very  ably  argued  by 
Assistant  Attorney  General  Joseph  J.  Hurley,  then  the  Chief  of  the 
Division.  In  April  of  1970,  the  Division  was  required  to  defend  the 
procedure  for  distributing  the  report  and  transcript  of  the  inquest  which 
was  the  subject  of  the  case  the  preceding  Fall.  That  suit,  which  was  filed 
in  the  Federal  Court,  was  also  of  great  significance  because  it  represented 
a  potential  conflict  between  the  Federal  and  State  court  systems. 

In  addition,  there  have  been  numerous  suits  in  the  state  courts  chal- 
lenging insurance  statutes,  orders  of  the  Commissioner  of  Insurance,  and 
orders  of  the  Department  of  Public  Utilities.  Federal  suits  have  been 
filed  challenging  portions  of  the  state  election  laws. 

The  Massachusetts  Reports  are  the  best  indication  of  the  scope  and 
complexity  of  the  work  of  this  Division.  Additionally,  I  note  that  the 
staff  of  the  Division  prepared  thirty-eight  formal  opinions  of  the  Attorney 
General  v/hich  are  reprinted  in  this  report. 

Citizens'  Aid  Bureau 

During  the  last  twelve  months  the  scope  of  the  Citizens'  Aid  Bureau 
has  increased  considerably.  One  of  the  major  innovations  has  been  the 
addition  of  a  Spanish-liaison  officer  who,  although  she  handles  all  types  of 
complaints  amongst  the  Spanish-speaking  community,  functions  out  of 
the  Citizens'  Aid  Bureau.  In  addition  to  servicing  Spanish-speaking 
people  who  have  problems  with  state  government  or  consumer  complaints, 
she  has,  on  a  regular  basis,  attended  meetings  in  the  Spanish  community 
and  visited  the  jails  to  insure  that  the  Spanish-speaking  inmates  rights'  are 
protected.     A  program  has  been  instituted  —  which  is  in  an  embryonic 


P.D.  12  9 

stage  at  present  —  with  the  various  colleges  throughout  the  Common- 
wealth to  have  Spanish-speaking  students  volunteer  at  correctional  insti- 
tutions to  service  individual  needs  under  the  dkection  and  guidance  of 
the  Department  of  the  Attorney  General.  Although  the  initial  response 
to  the  services  for  Spanish  people  in  the  Attorney  General's  cifice  was 
minimal,  it  is  now  a  firmly  established  service  in  the  community  and 
used  often  by  people  throughout  the  state. 

One  of  the  more  noticeable  changes  during  the  past  year  was  the 
fact  that  the  volume  of  complaints  received  by  the  Bureau  remained 
constant  at  about  an  average  of  60  per  day.  This  is  due  in  part  to  the 
increased  visibility  of  the  Bureau  and  the  fact  that  more  and  more  state 
agencies  are  referring  people  to  us  for  assistance.  The  staff  has  gen- 
erally consisted  of  nine  people,  four  of  whom  have  been  interns  — 
either  on  the  summer  program  or  the  work  study  program  from  Harvard 
Divinity  School.  The  frequent  turnover  of  interns  has  proved  beneficial 
—  inasmuch  as  the  students  employed  by  the  office  have,  without  excep- 
tion, a  keen  interest  in  helping  people  and  learning  tlie  v/orkings  of  state 
government.  One  of  the  last  year's  Harvard  Divinity  students  has  in 
fact  remained  on  as  a  part-time  member  of  the  staff.  In  addition  to 
dealing  with  the  day-to-day  problems,  the  interns  have  done  research 
papers  on  matters  of  public  concern  —  such  as  the  new  rent  control 
legislation.  This  enables  the  office  to  have  detailed  information  readily 
available. 

One  of  the  major  stumbling  blocks  faced  in  helping  people  has  been 
due  to  the  cut-back  of  federal  funds  for  legal  assistance  projects.  In  par- 
ticular, legal  services  for  indigent  persons  in  Southeastern  Massachusetts 
are  now  almost  non-existent.  The  fact  that  some  of  the  larger  private 
firms  are  now  taking  indigent  clients  has  helped  somewhat  but  there  is 
still  a  crying  need  for  legal  services  to  the  poor. 

Civil  Rights  and  Liberties 

The  work  of  the  Division  includes  acting  as  chief  counsel  to  the 
Massachusetts  Commission  Against  Discrimination,  the  state  agency  em- 
powered to  enforce  those  state  laws  prohibiting  discrimination  based  on 
race,  color,  religion,  sex,  age,  national  origin  or  ancestry  and  past 
or  present  membership  in  the  armed  forces  in  the  areas  of  employment, 
housing,  education  and  public  accommodations. 

The  case  of  Massachusetts  Commission  Against  Discrimination  v. 
Franzaroli  was  extremely  significant  for  the  Commission  in  that  the 
Supreme  Judicial  Court  held  in  its  ruling  that  the  Commission,  where 
there  is  a  basis  for  a  finding  that  a  complainant  suffered  frustration  and 
humiliation  as  a  result  of  a  respondent's  discrimination,  may  make  an 
award  of  damages  to  the  complainant  to  compensate  him  for  the  mental 
suffering  so  incurred.  This  ruling  marked  the  first  time  in  this  Com- 
monwealth that  the  Court  had  applied  the  principles  of  damage  for 
mental  suffering  to  a  case  of  racial  discrimination. 

Attorneys  in  the  Division  also  appear  regularly  in  Superior  Court 
proceedings  to  prevent  discriminatory  practices,  primarily  in  the  areas 
of  housing  and  employment. 


10  P.D.   12 

During  the  calendar  year  the  Division  has  successful  defended  sub- 
poenas issued  by  the  Commission  to  both  public  and  private  bodies 
for  the  production  of  books  and  records  deemed  relevant  to  investigations 
being  conducted  by  the  Commission.  Despite  strong  arguments  by 
various  respondents  that  the  power  of  subpoenas  accrues  to  the  Com- 
mission only  at  the  public  hearing  stage  of  its  proceedings,  the  Courts 
have  declined  to  accept  that  narrow  interpretation  of  the  law  and  instead 
have  ruled  that  the  Commission  did  have  the  power  to  subpoena  books 
and  records   at  the  investigative   stage   of  its   proceedings. 

In  addition,  members  of  the  Division  sit  as  counsel  to  the  Commission 
at  its  weekly  public  hearings  and  advise  the  Commission  on  a  daily  basis 
as  to  problems  that  the  Commission  encounters  in  the  administration  of 
the  antidiscrimination  laws. 

In  addition  to  handling  litigation  on  behalf  of  the  Commission  Against 
Discrimination,  the  Division  processes  many  complaints  and  inquiries 
in  its  daily  operation  regarding  the  civil  rights  and  liberties  of  the  citizens 
of  the  Commonwealth. 

Of  particular  importance  to  the  Division  are  complaints  made  by 
citizens  who  allege  police  misconduct.  Two  of  the  most  extensive  efforts 
made  by  this  Division  in  this  connection  involved  the  following  incidents: 

1)  "Earth  Day"  Demonstration  at  Logan  Airport,  April 
22,  1970.  After  a  thorough  investigation,  the  Division  con- 
cluded that  the  police  were  "within  bounds"  in  dispersing  the 
demonstrators. 

2)  Hemenway  Street  Incident,  May  10  and  11,  1970. 
The  Division  is  conducting  an  exhaustive  investigation  of  this 
confrontation  in  conjunction  with  the  Internal  Affairs  Division 
of  the  Boston  Police  Department. 

This  Division  acts  as  counsel  to  the  Massachusetts  Obscene  Literature 
Control  Commission  and  in  addition,  processes  many  inquiries  and  com- 
plaints from  the  general  public  regarding  obscenity.  Further,  the  mem- 
bers of  the  Division  review  allegedly  obscene  books  submitted  to  them 
by  local  police  departments  and  advise  as  to  whether  such  materials 
should  be  prosecuted  and  by  what  means. 

Of  particular  concern  is  the  passage  of  legislation  to  insure  greater 
protection  from  the  civil  rights  and  liberties  of  all  citizens,  and  toward 
this  end  members  of  the  Division  testified  at  a  number  of  legislative 
hearings.  A  bill  (H.  2990),  drafted  through  the  joint  efforts  of  staff 
attorneys  of  the  Commission  Against  Discrimination  and  this  Division,  re- 
quiring the  Commission  to  oversee  State  contracts  in  excess  of  $100,000, 
was  filed  and  actively  supported  by  the  Division.  The  bill  contemplated 
requiring  prospective  contractors  to  submit  an  affirmative  action  plan 
providing  for  equal  employment  opportunity  to  the  Massachusetts  Com- 
mission Against  Discrimination  in  accordance  with  regulations  and  guide- 
lines adopted  by  that  Commission  at  a  public  hearing.  Although  this  biU 
was  not  enacted  into  law  during  the  1970  legislative  session  it  will  be 
resubmitted  in  substantially  the  some  form  for  consideration  at  the  1971 
session  of  the  General  Court. 


P.D.   12  11 

Public  speaking  engagements  and  the  development  of  guidelines  for 
police  and  district  attorneys  in  the  area  of  obscenity  and  human  rela- 
tions were  among  the  many  other  efforts  undertaken  by  the  Division  in 
1969-1970. 

Consumer  Protection 

During  the  year  ending  June  30,  1970,  the  Consumer  Protection 
Division  experienced  a  substantial  growth.  The  number  of  consumer 
complaints  was  more  than  double  that  of  the  preceding  year;  staff  corres- 
pondingly increased.  Several  hundred  thousands  of  dollars  were  re- 
turned to  consumers  who  had  lost  money  or  property  because  of  the 
unfair  or  deceptive  practices  of  certain  sellers  and  lenders. 

The  wide  scope  of  the  Massachusetts  Consumer  Protection  Act  and  the 
regulatory  powers  of  the  Attorney  General  under  that  law,  as  well  as  the 
enactment  of  new  legislation  outlawing  other  unfair  or  deceptive  practices, 
have  allowed  the  Division  to  investigate  and  enforce  the  law  in  a  num- 
ber of  important  areas. 

The  volume  of  consumer  complaints  and  the  addition  of  new  consumer 
laws  have  created  a  need  for  educating  the  public  about  the  provisions  of 
these  statutes.  Consequendy,  a  weekly  "Consumer  News"  column  is 
written  and  released  to  some  two  hundred  daily  and  weekly  newspapers 
throughout  the  Commonwealth.  A  set  of  six  Consumer  Information 
leaflets  has  been  prepared  illustrating  several  of  the  laws  in  cartoon  form. 
150,000  leaflets  were  distributed  during  1970.  Staff  members  of  the 
Division  appeared  on  television  and  were  heard  on  the  radio;  others  ad- 
dressed various  fraternal  and  service  organizations,  schools  and  other 
interested  groups. 

An  average  of  two  hundred  complaints  is  investigated  by  the  Division 
each  week.  In  most  cases  the  Division  is  able  to  arrange  for  a  refund, 
a  repair,  or  a  replacement  for  a  consumer  who  has  filed  a  complaint  with 
the  Division.  Last  March  when  350  Revere  residents  were  facing  an  in- 
terest rate  increase  on  their  mortgages,  the  Division  was  able  to  save  the 
homeowners  $500,000  through  an  informal  settlement  with  the  bank. 

In  the  area  of  litigation,  many  new  suits  were  brought  to  stop  unfair 
practices.  In  the  automotive  field,  several  injunctions  were  obtained 
against  dealers  who  had  turrned  back  odometers  in  vehicles  which 
they  offered  for  sale.  Some  twenty-eight  injunctions  were  obtained 
against  used  car  dealers  who  were  using  misrepresentations  in  classified 
ads. 

Over  two  hundred  meetings  were  held  with  representatives  of  all  types 
of  business  to  discuss  advertising  and  merchandising  methods.  Through 
these  informal  meetings,  substantial  modifications  were  made  to  assure 
consumers  full  and  fair  disclosure  of  the  quality  and  adequacy  of  mer- 
chandise being  offered  for  sale. 

In  1970,  thirteen  new  consumer  laws  were  enacted  to  supplement  the 
existing  state  consumer  protection  statutes,  which  are  the  most  ad- 
vanced and  progressive  in  the  country.  The  Consumer  Protection  Divi- 
sion is  working  to  implement  the  consumer  laws  throughout  the  Common- 
wealth. 


12  P.D.  12 

Contracts 

The  work  of  the  Contracts  Division  is  divided  generally  into  three 
phases:  serving  in  an  advisory  capacity  to  officials  in  the  various  de- 
partments and  agencies,  the  approval  of  written  agreements  to  which 
the  Commonwealth  is  a  parly,  and  representiiig  the  Commonwealth  in 
all  litigation  arising  out  of  contractual  matters. 

All  contracts,  bonds  and  leases  to  which  the  Commonwealth  is  a 
party  must  be  approved  by  this  Division.  Each  instrument  is  reviewed 
in  order  to  ascertain  that  ail  formal  requirements  of  law  have  been  met. 
Certain  instruments  must  also  be  approved  as  to  substance.  The  Division 
receives  approximately  one  hundred  contracts  each  v/eek  for  approval.  In 
addition,  the  form  of  all  documents  prepared  in  connection  with  note 
issues  and  notice  of  sale  of  bonds  under  financial  assistance  programs 
for  the  elderly  and  veterans  of  low  income  is  reviewed  and  approved  by 
the  Division. 

One  of  the  most  important  services  performed  by  this  Division  is  the 
day-to-day  advice  and  counsel  given  to  officials  from  the  various  state 
departments  and  agencies.  During  the  past  year,  this  Division  handled 
over  two  hundred  such  matters,  involving  contract  formation,  contract 
negotiation,  pre-bidding  matters,  bidding  disputes,  performance  of  con- 
tracts, and  alleged  contract  violations.  These  matters  involve  confer- 
ences, investigation,  research  and  memoranda  of  law,  informal  opinions, 
and  oral  advice  and  counsel.  The  number  of  requests  has  increased 
markedly  in  recent  months.  As  a  result  of  our  work  in  this  area,  we 
have  recommended  the  adoption  of  certain  nev/  procedures  and  changes 
in  the  existing  procedures.  Our  recommendations  have  been  adopted 
by  many  agencies. 

We  welcome  the  opportunity  to  service  the  state  agencies  in  this 
fashion  because  of  the  probability  that  early  action  can  prevent  htigation, 
often  expensive  and  time-consuming. 

The  attorneys  in  the  Contracts  Division  are  constantly  engaged  in  the 
various  phases  of  litigation:  pleadings,  appearing  at  the  Equity  Motion 
Session  arguing  motions  and  demurrers;  interviewing  witnesses  and  ex- 
amining documents;  trying  cases  before  Auditors,  Masters  and  Judges; 
taking  depositions  of  witnesses  and  parties;  and  handling  the  various 
stages  of  appeals  including  the  writing  of  briefs  and  argument  before 
the  Supreme  Judicial  Court. 

The  bulk  of  our  cases,  and  the  most  complex  cases,  are  those  arising 
out  of  building  construction  and  the  construction  of  public  roads  and 
other  public  works. 

Future  construction  litigation  will  certainly  be  affected  by  two  cases 
decided  by  the  Supreme  Judicial  Court  in  1970.  The  case  of  Farina 
Brothers  Co.  v.  Commonwealth,  1970  A.  S.  371  will  serve  as  a  guide 
in  all  future  cases  in  which  a  contractor  seeks  to  recover  damages  from 
the  Commonwealth  occasioned  by  delay  beyond  his  control.  In  the 
Farina  case,  the  contract  provided  that  damages  would  not  be  awarded 
for  such  delay,  but  that  an  extension  of  time  for  completion  would  be 
granted.  In  the  case  of  Wes-JiiUan  Construction  Corp.  vs.  Common- 
wealth, 351  Mass.  588,  the  Court  had  upheld  such  a  contract  provision 


P.D.  12  13 

and  denied  damages  to  the  contractor,  but  allowed  an  extension  of  time 
for  completion  of  the  work.  In  the  Farina  case,  the  Court  said  that  the 
contractor  was  entitled  to  damages  where  the  delay  was  caused  by  the  un- 
reasonable, arbitrary,  and  capricious  conduct  of  the  agents  of  the  Com- 
monwealth. 

The  case  of  Earl  Alpert,  Trustee  vs.  Commonwealth,  1970  A.  S.  569 
will  also  affect  future  contracts.  Many  of  the  holdings  of  the  Court 
in  this  case  are  of  first  impression  in  this  jurisdiccion.  For  the  first 
time  in  a  suit  against  the  Commonwealth,  the  Court  held  that  where  the 
Commonwealth  furnishes  plans  and  specifications  for  a  contractor  to 
follow  in  a  construction  job,  the  Commonwealth  impliedly  warrants 
their  sufficiency  for  the  purpose  intended.  In  addition,  the  Court  held 
that  the  Commonwealth,  by  positively  representing  the  amount  of  un- 
suitable material  to  be  encountered  on  a  job  site,  impliedly  warranted 
that  it  had  made  a  full  disclosure  regarding  soil  borings  it  had  taken. 
Also,  that  in  positively  asserting  a  specific  quantity  of  unsuitable  material 
to  be  encountered,  the  Commonwealth  had  made  a  representation  upon 
which  a  bidder  could  rely  without  further  investigation,  irrespective  of 
the  language  of  several  exculpatory  clauses  in  the  contract. 

The  Division  is  frequently  involved  in  the  trial  of  complex  matters 
which  do  not  involve  construction  contracts.  For  example,  we  success- 
fully defended  the  members  of  the  Group  Insurance  Commission  in  a 
suit  which  attacked  their  award  of  the  group  insurance  contract  for  state 
employees.  This  case,  Amato  vs.  Group  Insurance  Commission,  was  de- 
cided favorably  to  the  Commission  by  a  Justice  of  the  Superior  Court  on 
December  29,  1970.     No  appeal  was  taken. 

In  another  matter,  the  trustees  of  the  Rockland  Realty  Trust  were 
enjoined,  after  trial,  from  filling  tide  lands  at  the  mouth  of  the  Neponset 
River.  This  Division  established  that  the  trustees  had  violated  the  terms 
of  a  license  issued  by  the  Department  of  Public  Works.  The  case  is 
now  on  appeal  to  the  Supreme  Judicial  Court. 

Criminal 

The  Criminal  Division  is  divided  into  three  sections:  Organized  Crime, 
Appellate  and  Trial. 

The  Organized  Crime  Section  of  the  Attorney  General's  Office  has  the 
dual  purpose  of  collecting  and  disseminating  intelligence  information  and 
the  investigation  and  prosecution  of  criminal  offenses  committed  by  mem- 
bers of  Organized  Crime. 

In  the  fiscal  year,  July  1,  1969  to  June  30,  1970,  this  Section  cata- 
logued approximately  fifteen  hundred  (1500)  Intelligence  Reports.  These 
Intelligence  Reports  contain  information  on  over  eight  hundred  in- 
dividuals. 

During  this  same  period,  two  hundred  and  fifty  (250)  items  of  val- 
uable criminal  data  were  disseminated  to  various  federal,  state  and  munic- 
ipal agencies. 

The  Section  provided  assistance  to  over  twenty  states  and  fifteen 
agencies  within  these  states,  assisting  in  Massachusetts  in  criminal  in- 
vestigations conducted  by  these  agencies  and  states. 


14  P.D.  12 

The  Organized  Crime  Section  has  been  an  active  member  of  the  Law 
Enforcement  Intelligence  Unit,  an  international  association  providing 
for  the  exchange  of  intelHgence  information,  and  is  also  presently  closely 
cooperating  with  the  Department  of  Justice  Organized  Crime  Strike 
Force  for  New  England,  the  Intelligence  Units  of  the  Massachusetts 
State  Police,  and  other  federal  agencies  having  mutual  interests. 

During  the  fiscal  year,  as  a  result  of  information  developed  by  the 
Organized  Crime  Section  twelve  (12)  defendants  were  arrested  in  the 
Springfield  area  for  violations  of  the  State  gaming  laws.  These  arrests 
resulted  in  jail  sentences  ranging  from  sixteen  (16)  to  eighteen  (18) 
months  and  over  ten  thousand  dollars  ($10,000)  in  fines. 

In  the  Worcester  area,  sixteen  (16)  bookmakers  were  arrested  based 
on  investigations,  conducted  by  the  Organized  Crime  Section.  Thus  far, 
four  of  these  defendants  have  been  convicted  resulting  in  fines  of  eight 
thousand  three  hundred  dollars  ($8,300). 

In  August  of  1969,  investigators  from  the  Organized  Crime  Section 
recovered  four  hundred,  forty-two  thousand  dollars  ($442,000)  worth 
of  stolen  negotiable  checks. 

This  Section  has  also  provided  investigators  and  criminal  information, 
which  has  resulted  in  forty-eight  (48)  indictments  in  Plymouth  County, 
as  a  part  of  an  investigation  into  fraudulent  automobile  claims. 

The  Organized  Crime  Section  has  conducted  investigations  into  bribery, 
extortion,  fraud,  gaming,  homicide,  loan  sharking  and  narcotics.  One 
investigation  has  resulted  in  the  indictment  of  eight  (8)  defendants,  three 
of  whom  are  considered  to  be  high-ranking  members  of  Organized  Crime. 

In  April  of  1970,  the  Organized  Crime  Section  began  the  first  of  five 
court  authorized  electronic  surveillances.  These  electronic  interceptions 
revealed  a  large  multi-county  gaming  conspiracy. 

The  Trial  Section  of  the  Criminal  Division  is  charged  with  the  respon- 
sibility of  reviewing  the  investigations  and  ultimately  prosecuting  crim- 
inal cases  referred  by  the  State  Police  assigned  to  the  Division  and  other 
State  agencies  having  investigatory  powers. 

One  significant  prosecution  involved  the  last  defendant  of  the  so- 
called  Under  Common  Garage  Case.  The  defendant,  George  L.  Brady, 
had  been  a  fugitive  from  justice  since  October,  1963,  and  was  arrested  in 
New  Jersey  in  November  of  1969.  After  being  returned  to  Massachu- 
setts he  was  tried,  convicted  and  sentenced.  One  facet  of  this  case  was 
reported  to  the  Supreme  Judicial  Court  and  the  Court  sustained  the  Com- 
monwealth's position. 

This  Section  also  successfully  prosecuted  cases  arising  from  the  infil- 
tration of  organized  crime  into  a  Lynn  area  bank  resulting  in  the  con- 
viction of  twelve  (12)  defendants. 

A  number  of  complaints  and  indictments  involving  various  offenses, 
such  as  larceny,  bribery  of  state  officials,  conflict  of  interest,  pollution, 
illegal  wire  tapping,  welfare  fraud,  sales  tax  violation,  and  contempt 
were  also  successfully  prosecuted. 

Grand  jury  investigations  were  also  conducted  and  resulted  in  the  re- 
turn of  indictments  against  individuals  involved  in  the  fraudulent  auto- 


P.D.   12  15 

mobile  claim  racket  and  indictments  against  employees  of  the  Massachu- 
setts Board  of  Registration  of  Real  Estate  Brokers  and  Salesmen. 

The  regular  work  of  this  Section  has  also  increased  due  to  the  fact 
that  in  the  past  year  it  continued  the  policy  of  iendmg  Assistant  Attorneys 
General  to  the  various  district  attorneys  in  order  to  assist  them  in  reduc- 
ing the  overwhelming  criminal  case  load  in  their  counties. 

In  the  Appellate  Section  of  the  Division,  the  number  of  extraordinary 
writs,  petitions  for  habeas  corpus,  petitions  for  certiorari  and  other  post 
conviction  remedies  filed  has  continued  to  increase.  Also  in  the  past 
year  there  were  several  petitions  filed  in  the  federal  district  court 
challenging  the  constitutionality  of  state  criminal  statutes. 

In  the  case  of  Karalexis  v.  Byrne,  this  Section  appealed  an  adverse 
ruling  to  the  Supreme  Court  of  the  United  States  which  took  jurisdiction. 
Attorney  General  Robert  H.  Quinn  twice  argued  the  case  which  mainly 
involved  the  question  of  the  proper  roles  of  the  state  and  federal  courts. 
The  case  is  presently  pending  before  the  Supreme  Court. 

In  the  cases  of  Commonwealih  v.  Schnackerberg,  1969  A.  S.  847, 
Commonwealth  v.  Baron,  1969,  A.  S.  1233,  and  Commonwealth  v.  Kelly, 
1970  A.  S.  1145,  this  Section  successfully  prosecuted  appeals  to  the 
Massachusetts  Supreme  Judicial  Court. 

This  Section  took  an  appeal  to  the  Supreme  Judicial  Court  from  an 
adverse  ruling  in  a  state  habeas  corpus  petition  and  was  successful  on 
appeal.  Frank  E.  Newton,  Petitioner,  1970  A.  S.  609.  It  is  the  first  re- 
ported case  involving  a  government  appeal  from  a  state  habeas  corpus. 

This  Section  also  has  assisted  in  training  local  and  state  police  at  the 
various  municipal  training  schools  conducted  throughout  the  Common- 
wealth. 

The  Appellate  Section  was  also  responsible  for  drafting  the  compre- 
hensive witness  immunity  bill  which  was  enacted  into  law  this  year. 
This  legislation  marked  the  end  of  an  eight-year  battle  by  the  District 
Attorneys  and  various  Attorneys  General  to  obtain  witness  immunity 
legislation. 

This  Section  also  assisted  the  rules  committee  of  the  district  court  in 
drafting  two  district  court  rules  involving  mental  commitments  in  crim- 
inal cases. 

Drug  Abuse 

In  September,  1969,  the  Drug  Abuse  Section  was  estabhshed  withm 
the  Department  of  the  Attorney  General.  The  purpose  of  the  Drug 
Abuse  Section  is  to  cooperate  on  a  statewide  basis  with  all  segments 
of  our  Massachusetts  society  in  a  united  effort  against  the  drug  problem. 

In  November,  1969,  the  Attorney  General  appointed  to  his  Advisory 
Committee  on  Drugs,  experts  in  the  field  —  professionals  and  laymen 
alike  —  to  advise  him  regarding  policy  decisions. 

One  of  the  first  tasks  of  the  Drug  Abuse  Section  was  to  assess  the 
resources  available  within  the  Commonwealth  for  combating  the  prob- 
lems of  drug  abuse.  In  this  task  the  Section  was  aided  by  preliminary, 
audits  prepared  by  members  of  the  Advisory  Committee.    This  effort  was 


16  P.D.   12 

continued  through  Project  Compilation  which  appealed  to  individuals, 
agencies,  and  organizations  throughout  the  state  to  notify  the  Drug  Abuse 
Section  of  their  services  and  functions  in  the  drug  field.  Follow-up  meet- 
ings were  conducted  in  several  Mental  Health  regions  to  provide  a  forum 
for  the  exchange  of  ideas  and  to  gather  additional  information. 

Under  the  mandate  of  Chapter  889  of  the  Acts  of  1969  (the  Drug 
Rehabihtation  Act)  the  Drug  Abuse  Section  estabhshed  its  police  training 
program  in  narcotics.  The  two-week  courses,  which  are  being  held  in 
every  county  of  the  state  are  designed  to  train  law  enforcement  officials 
in  all  aspects  of  the  drug  problems,  so  that  they  will  approach  the  drug 
problems  intelligently  and  humanely.  The  courses  instruct  police  officials 
concerning  federal  and  state  drug  laws,  detection  methods  and  procedures, 
law  enforcement  techniques,  the  legal  and  practical  ramifications  of 
search  and  seizure,  the  physiological,  psychological  and  sociological  as- 
pects of  drug  abuse,  treatment  and  rehabilitation  resources,  and  methods 
of  promoting  cooperation  among  agencies.  Beginning  in  March,  1970, 
the  Drug  Abuse  Section  held  6  two-week  Basic  Courses  with  210  law 
enforcement  officials  from  12  counties  in  Massachusetts  graduating. 

An  outgrowth  of  the  police  training  program  has  been  a  regionaliza- 
tion  program  whereby  graduates  of  the  course  are  setting  up  drug  intelli- 
gence networks  of  county  agencies  that  gather  information  about  drugs, 
drug  users,  drug  supplies  and  suppliers.  Through  this  cooperative  ef- 
fort the  data  will  be  gathered  and  programmed  into  a  computer  so  that 
it  will  be  readily  available  to  narcotics  agents  throughout  the  Common- 
wealth. 

A  major  goal  of  the  Drug  Abuse  Section  has  been  to  overcome  the 
widespread  misconceptions  and  ignorance,  within  which  drug  abuse  flour- 
ishes. The  staff  has  already  made  significant  headway  in  disseminating 
information  regarding  the  abuse  of  drugs  and  the  sanctions  provided  by 
the  law.  They  have  spoken  to  parents,  students,  members  of  civic  and 
professional  groups,  educators  and  legislators. 

There  has  also  been  formed  a  Citizens'  Corps  Against  Drug  Abuse, 
including  several  prominent  sports  figures,  to  present  young  people  with 
alternatives  to  the  drug  adventure. 

As  part  of  its  drug  education  program,  the  Drug  Abuse  Section  pub- 
lishes TRACKS,  a  bi-monthly  newsletter  on  drugs;  and  two  pamphlets, 
MASSACHUSETTS  DRUG  LAWS  and  DRUG  ABUSE  REFERENCE 
CHART.  These  materials  have  been  disseminated  among  educators,  stu- 
dents,  professionals   and   other  citizens   throughout   the   Commonwealth. 

The  Drug  Abuse  Section  has  availed  itself  of  systematic  research  in 
the  area  of  drug  abuse.  It  has  taken  part  in  the  activities  of  a  technical 
scientific  group  which  includes  experts  from  the  fields  of  medicine  and 
psychiatry.  This  group  continues  to  study  and  make  recommendations 
regarding  various  complex  aspects  of  the  drug  problems.  The  Attorney 
General,  in  his  efforts  to  encourage  meaningful  research,  has  granted 
permission  for  several  studies  on  marijuana  to  be  conducted  by  qualified 
investigators. 

The  Drug  Abuse  Section  has  been  called  upon  to  explain  and  interpret 
the  statutory  provisions  regarding  drugs  and  drug  abuse.     It  has  formu- 


P.D.  12  17 

lated  appropriate  revisions  and  proposals  for  new  administrative  rules  and 
regulations  or  legislation. 

Emineni-  Domain 

The  Eminent  Domain  Division  is  responsible  for  handling  all  litigation 
involving  land  to  which  the  Commonwealth  is  a  party.  The  Division 
acts  as  legal  counsel  to  all  agencies  of  the  Commonwealth  in:  (1)  the 
acquisition  of  land,  whether  the  transfer  is  voluntary  or  involuntary,  (2) 
the  disposal  of  land  by  the  Commonwealth,  and  (3)  all  matters  before 
the  Land  Court  to  which  the  Commonwealth  is  a  party.  In  addition, 
the  Eminent  Domain  Division  is  responsible  for  the  processing  and  dis- 
posing of  all  land  damage  actions  filed  against  the  Commonwealth  under 
Chapter  79  of  the  General  Laws.  The  division,  also,  has  the  responsibil- 
ity of  handling  cases  arising  out  of  the  application  of  Chapter  130  of 
the  General  Laws,  and  other  statutes  related  to  conservation  and  water 
pollution  wherein  the  Commonwealth  claims  damages. 

Under  the  above-mentioned  chapters,  the  Division  acts  as  attorney 
for  state  agencies,  such  as,  the  Department  of  Pubhc  Works,  Metropolitan 
District  Commission,  The  Board  of  Trustees  of  State  Colleges,  University 
of  Massachusetts,  Southeastern  Massachusetts  University,  Department  of 
Natural  Resources,  Water  Resources  Commission  and  Community  Col- 
leges in  connection  with  matters  relating  to  real  estate. 

The  bulk  of  the  Division's  efforts  are  devoted  to  land  damage  actions 
resulting  from  the  exercise  of  the  Commonwealth's  power  of  eminent 
domain.  This  power  is  initiated  when  it  becomes  necessary  to  take  private 
property  to  complete  a  public  purpose  project.  There  are  many  phases 
to  the  proper  exercise  of  this  power,  but  the  Eminent  Domain  Division 
becomes  involved  only  when  the  former  land  owner  in  the  proceeding  is 
not  satisfied  with  the  offer  made  by  the  taking  agency  and  files  a  petition 
in  the  appropriate  Superior  Court.  At  this  point  the  Attorney  General's 
Office  takes  full  control  and  responsibility. 

Under  the  present  Attorney  General,  the  governing  directive  is  to 
achieve  a  just  and  reasonable  solution  to  the  dispute  in  the  shortest  period 
of  time  while,  at  the  same  time,  making  a  conscious  effort  not  to  sacrifice 
competence  for  speed.  The  philosophy  behind  the  approach  is  to  avoid 
undue  delay  which  leads  to  inconvenience,  aggravation  and  hard  feelings. 
To  this  end,  procedures  have  been  formulated  within  the  Division  to 
insure  that  all  cases  are  thoroughly  analyzed,  prepared  and  ready  for  trial 
at  the  earliest  possible  moment. 

The  fiscal  year  1970  began  with  1337  cases  pending.  During  the 
year,  349  new  petitions  were  filed,  which  brought  the  total  case  load  to 
1686.  Of  these  1686  cases,  382  have  been  disposed  of  by  settlement  or 
trial  leaving  1304  cases  pending. 

At  the  present  time,  the  Division  is  handling  two  cases  of  major  im- 
portance. The  first  is  UNITED  STATES  VS.  MAINE,  ET  AL.  No.  35 
original.  This  case  involves  a  joint  claim  by  a  number  of  the  states  of  the 
eastern  seacoast  that,  in  fact,  the  seaward  jurisdiction  of  a  state  extends 
beyond  the  three-mile  limit  and  is  determined  by  the  termination  of  the 
continental  shelf.  It  is  being  prosecuted  joindy  by  the  Attorneys  Gen- 
eral of  Maine,  New  Hampshire,  Massachusetts,  Rhode  Island,  New  York, 


18  P.D.   12 

New  Jersey,  Delaware,  Maryland,  Virginia,  North  Carolina,  South 
Carolina,  Georgia  and  Florida.  This  case  is  of  great  concern  to  these 
various  states  in  view  of  the  reported  quantities  of  natural  resources 
contained  within  the  Continental  Shelf. 

The  second  case  of  importance  is  ELLIOT,  ET  AL  VS.  VOLPE,  ET 
AL.  In  this  case,  the  petitioners  are  seeking  injunctive  relief,  declara- 
tory relief,  and  mandamus  against  various  federal  and  state  officials. 
In  essence,  the  petitioners  are  attempting  to  halt  construction  of  High- 
way 1-93  through  Somerviile,  claiming  primarily  that  both  the  federal 
and  state  governments  have  violated  the  National  Environmental  Policy 
Act  (42  U.  S.  C.  Section  4321  et  seq.)  and  numerous  regulations  of 
the  Federal  Government's  Department  of  Transportation. 

In  addition  to  the  tremendous  case  load  handled  by  the  Division, 
there  is  a  deep  concern  with  the  drafting  and  passage  of  certain  legis- 
lation. The  Eminent  Domain  Division  was  instrumental  in  the  drafting 
and  passage  of  a  bill  which  provides  for  the  continuous  cleaning  and 
dredging  of  harbors  to  improve  fishing  and  boating  and  establishes  a 
harbor  maintenance  fund.  Chapter  878  of  the  Acts  of  1970.  This 
legislation  will,  also,  provide  for  the  removal  of  the  dangerous  dilapidated 
piers  and  wharves  that  are  so  often  a  menace  to  navigation.  Other  bills 
to  curb  oil  and  water  pollution  problems  were  passed  in  the  last  legisla- 
tive session.  Chapter  827  of  the  Acts  of  1970.  As  the  dangers  of 
water  pollution  to  the  health  and  welfare  of  all  individuals  become  more 
evident,  the  Division  will  continue  to  participate  in  the  drafting  and  filing 
of  bills  for  our  environmentol  protection. 

Employment  Security 

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

During  the  fiscal  year,  721  cases  were  handled  by  this  Division.  Of 
these,  495  cases  were  on  hand  at  the  outset  of  the  year,  and  226  new 
cases  were  thereafter  received.  Of  the  new  cases,  166  were  employer 
tax  cases,  55  were  fraudulent  claims  cases,  and  5  were  appeals  to  the 
Supreme  Judicial  Court. 

Cases  closed  during  the  fiscal  year  totaled  163,  of  which  107  were 
employer  tax  cases,  50  were  fraudulent  claims  cases  and  6  Supreme 
Judicial  Court  appeals,  leavmg  a  balance  of  558  cases.  $152,427.71  was 
collected  from  employers  and  $33,313.00  collected  as  the  result  of 
fraudulent  claims  cases,  making  a  total  recovery  for  the  Commonwealth 
of  $185,740.71.  Additional  steps  were  taken  during  the  year  to  secure 
more  prompt  referral  of  cases  to  the  Attorney  General,  so  as  to  preclude 
the  running  of  the  statute  of  limitations. 

In  this  fiscal  year  an  interesting  case  was  successfully  argued  at  the 
December,  1969  sitting  of  the  Supreme  Judicial  Court.  The  case  in- 
volved an  appeal  by  an  employer  from  a  decision  of  the  Board  of 
Review  of  the  Division  of  Employment  Security.     An  employee  of  16 


P.D.  12  19 

years  was  terminated  due  to  a  reduction  in  force.  Subsequently,  he 
received  payment  from  his  employer  for  a  three-months'  period.  The 
question  was  whether  or  not  the  payment  constituted  a  "severance  pay- 
ment" or  a  "payment  in  heu  of  dismissal  notice."  If  it  were  a  payment 
in  lieu  of  dismissal,  it  would  come  within  the  definition  of  remuneration 
in  the  Employment  Security  Law  and,  therefore,  he  would  not  be  in 
total  unemployment  and  not  entitled  to  unemployment  compensation. 
The  Board  of  Review  had  found  that  the  payment  was  a  "severance  pay- 
ment", did  not  constitute  "remuneration  within  the  meaning  of  the  law 
and  that,  therefore,  the  employee  was  unemployed  and  entitled  to  unem- 
ployment benefits."  Our  position  supported  the  decision  of  the  Board  of 
Review,  and  we  contended  that  the  payment  was  a  "severance"  payment 
and  that  it  did  not  disqualify  the  employee  from  receiving  unemployment 
benefits.  This,  we  argued,  was  so  in  spite  of  the  fact  that  the  employer's 
administrative  procedures  set  forth  in  its  Manual  of  procedure  provided 
for  "remuneration  in  lieu  of  notice." 

The  Supreme  Judicial  Court  rendered  hs  decision  in  the  matter  of  the 
Bolta  Products  Division,  The  General  Tire  and  Rubber  Co.  v.  The 
Director  of  the  Division  of  Employment  Security,  et  al.,  1970  Ad.  Sh.  139 
supporting  facts  presented  in  our  argument  and  affirming  the  decisions  of 
the  District  Court  and  Board  of  Review. 

The  Employment  Security  Division  has  continued  its  practice  of 
cooperating  with  the  various  departments  of  the  Government  of  the 
Commonwealth.  For  example,  information  has  been  furnished  on  sev- 
eral occasions  to  the  Department  of  Corporations  and  Taxation,  which 
was   obtained   in   investigations   conducted   by   this    Division. 

Cases  on  hand  July   1,   1969:  495 

Employer  tax  cases:  264 

Employee    overpayment    fraud    cases:  230 

Supreme  Judicial  Court  cases  — 

(On   appeal   from   Board/Review   decision):  1 

Additional  Referrals:  226 

Employer  tax  cases:  166 

Employee  overpayment  fraud  cases:  55 

Supreme  Judicial  Court  cases  — 

(On    appeal    from    Board/Review    decision) :  5 

Total  Cases  During  Fiscal  Year:  721 

Cases  Closed:  163 

Employer  tax  cases: 

1.  Paid  in  full  77 

2.  Uncollectible  13 

3.  Partial   Payment,   Balance   uncollectible  15 

4.  Returned  to  DES  Counsel  2 

107 
Employee  overpayment  fraud  cases: 

1.  Paid  in  full  36 

2.  Returned  to  Claims  Investigation 
Department  for  further  Administrative 

action  14 


20  P.D.  12 

50 

Supreme  Judicial  Court  Cases: 

(On  appeal  from  Board/Review  decision) 

1.  Decision  of  Board  upheld  by  the  District 
Court  was  upheld  by  the  Supieme  Judicial 

Court  1 

2.  Appeal  Waived  by  Withdrawal  5 


Cases  on  hand  June  30,  1970:  558 

Employer  tax  cases:  320 

Employee  overpayment  fraud  cases  238 

Supreme  Judicial  Court  Cases  — 

(On   appeal   from   Board/Review   decision):  0 

Total  Monies  collected  on  employer  tax  cases:  $152,427.71 

Total  Monies  collected  on  employee  overpayment 

fraud  cases:  $  33,313.00 

Criminal  Complaints:  38  Complaints,  involving  549  counts  of  larceny  were  sought 

against  38  employees, 

and 

132   Complaints,   involving   811   counts   of   tax   evasions   were   sought   against 

101  employers. 

Health,  Education  and  Welfare 

The  Health,  Education  and  Welfare  Division  provides  legal  counsel 
for  a  number  of  state  agencies,  principally  the  Departments  of  Public 
Welfare,  Public  Health,  Natural  Resources,  Education  and  Mental 
Health  and  the  Rate  Setting  Commission.  The  division's  ten  Assistant 
Attorneys  General  and  two  Special  Assistant  Attorneys  General  perform 
a  wide  variety  of  services,  including  representation  in  court  proceedings, 
advice  to  agencies  in  the  administration  of  the  laws,  research  into  legal- 
technological  questions,  as  in  the  area  of  pollution  abatement,  and  prep- 
aration of  legislation. 

Litigation  in  defense  of  the  Department  of  Public  Welfare  and  for 
enforcement  of  air  and  water  pollution  abatement  orders  of  the  Depart- 
ments of  Public  Health  and  Natural  Resources  has  markedly  increased. 
Nowhere  are  the  Division's  disparate  functions  so  apparent  as  in  these  two 
areas  of  representation. 

Several  cases  which  were  commenced  to  protect  the  environment  war- 
rant mention. 

The  Attorney  General  on  behalf  of  the  Commonwealth  joined  with 
thirteen  other  states  in  a  suit  before  the  United  States  Supreme  Court 
against  four  major  automobile  manufacturers  for  alleged  conspiracy 
to  violate  the  anti-trust  laws.  (State  of  Washington,  ct  al.  v.  General 
Motors  Corporation,  et  al.,  O.  T.  1970,  Original  Action  No.  45).  It 
is  claimed  that  the  manufacturers  delayed  research  and  development  to- 
ward abatement  of  automobile  exhaust  emissions. 

For  the  first  time  a  court  order  was  obtained  requiring  a  municipality 
to  build  a  treatment  plant  for  raw  sewage  being  dumped  into  a  river. 
Similarly,  actions  were  successfully  brought  against  fish  processing  plants 
in  Gloucester  for  dumping  raw  fish  waste  products  into  the  harbor.     The 


P.D.  12  21 

unregulated  dumping  of  toxic  waste  materials,  including  mercury  and 
beryllium,  into  the  offshore  waters  of  the  Commonwealth  was  termin- 
ated as  a  result  of  negotiations  initiated  by  the  Attorney  General. 

In  addition  to  the  above  cases,  actions  were  brought  against  both 
priv'ate  and  municipal  owners  of  dumps  and  incinerators  which  termin- 
ated in  closings  or  repairs  abating  the  pollution. 

Because  of  the  need  for  quasi-legal  research  into  the  technological 
aspects  of  environmental  protection,  a  task  force  of  summer  legal  interns 
was  formed  to  research  problems  which  included  the  protection  of  wet- 
lands, the  regulation  of  outdoor  advertising,  open  burning  on  barges  in 
Massachusetts  waters,  disposal  of  solid  waste,  the  environmental  impact 
of  supersonic  transportation,  and  the  dangers  of,  and  methods  of  abating, 
airport  and  city  noise.  The  seriousness  of  the  environmental  crisis 
generated  discussions  of  the  advisability  of  the  creation  of  a  separate  en- 
vironmental division  in  the  Attorney  General's  Office. 

Suits  against  the  Department  of  Public  Welfare  increased  to  such 
a  point  as  to  require  the  full-time  services  of  two  attorneys  and  the 
part-time  services  of  three  others,  who  represented  the  Department  in 
both  state  and  federal  courts.  The  issues  involved  were  too  varied  to 
note  but  of  great  import  was  a  claim  that  striking  employees  of  a  major 
corporation  were  illegally  receiving  welfare  assistance.  It  is  expected 
that  review  order  of  the  federal  court  favoring  the  employees  and  sustain- 
ing the  Department's  position  will  be  sought  on  appeal  to  the  United  States 
Supreme  Court. 

Student  unrest  on  college  campuses  led  the  Attorney  General  to  twice 
meet  with  college  administrators  and  state  educational  officials  in  order 
to  lay  down  guidelines  for  the  course  of  action  to  be  taken  in  the  event  of 
student  disruption.  Education  litigation  included  a  federal  court  chal- 
lenge to  the  procedures  employed  in  altering  the  status  of  a  student  at  a 
state  college.  The  court's  decision  in  that  case,  Armsden  v.  Cataldo, 
315  F.  Supp.  129,  is  most  significant  for  its  reaffirmance  of  the  need  for 
federal  civil  rights  plaintiffs  to  exhaust  available  administrative  remedies 
before  seeking  redress  from  a  federal  court. 

Other  activities  of  the  Division,  no  less  important  or  time-consuming, 
included  representation  of  both  the  Departments  of  Public  Health  and 
Public  Safety  in  litigation  reviewing  the  revocation  or  non-renewal  of 
nursing  home  licenses  for  failure  to  meet  health  and  safety  codes.  Fur- 
ther, several  cases  brought  against  the  Rate  Setting  Commission  con- 
tested the  per  diem  rates  set  for  hospitals,  nursing  homes,  rest  homes 
and  convalescent  homes  for  care  rendered  to  state-aided  patients.  Sev- 
eral such  cases  were  appealed  to  the  Supreme  Judicial  Court  and  pres- 
ently await  oral  argument.  The  first  to  be  heard  will  test  the  power  of 
the  Commission  to  audit  the  books  and  records  of  the  business  entities 
receiving  such  reimbursement  from  the  Commonwealth. 

Hearings  for  the  determination  of  the  legal  status  of  patients  confined 
at  Bridgewater  State  Hospital  are  held  before  an  Associate  Justice  of 
the  Superior  Court.  The  staff  of  the  Division  participates  as  counsel  for 
the  state  officials  concerned,  since  the  hearings  determine  whether  the 
patient  requires  the  strict  supervision  of  the  institution  at  Bridgewater 
or  if  transfer  to  another  state  facility  is  warranted. 


22  P.D.   12 

At  the  request  of  the  Department  of  Public  Health,  an  investigation 
was  conducted  into  the  embargoing  of  food  by  that  Department's  Food 
and  Drug  Division.  A  report  was  prepared  detailing  recommendations 
for  procedures  to  be  followed  when  goods  are  embargoed  for  the  in- 
formation and  protection  of  the  consumer. 

In  the  late  summer  of  1969  the  Legislature  enacted  the  Compre- 
hensive Drug  Rehabihtation  Act,  Chapter  889,  Acts  and  Resolves  of 
1969,  providing  Massachusetts  with  enlightened  drug  rehabilitation  and 
drug  law  enforcement.  The  new  legislation  increases  the  duties  and 
responsibilities  of  the  Attorney  General  in  the  program  to  alleviate  the 
drug-abuse  crisis. 

Industrial  Accidents 

The  Industrial  Accidents  Division  serves  as  legal  counsel  to  the  Com- 
monwealth in  all  workmen's  compensation  cases  involving  state  em- 
ployees. Pursuant  to  G.  L.  c.  152,  section  69A,  the  Attorney  General 
must  approve  all  payments  of  compensation  benefits  and  disbursements 
for  related  medical  and  hospital  expenses  in  compensable  cases.  In 
contested  cases  this  Division  represents  the  Commonwealth  before  the 
Industrial  Accident  Board  and  in  appellate  matters  before  the  Superior 
Court  and  the  Supreme  Judicial  Court. 

During  the  1968-1969  fiscal  year  the  Supreme  Judicial  Court  had 
decided  Klapacs's  case,  355  Mass.  46,  which  involved  a  claim  against  the 
Commonwealth  under  the  Workmen's  Compensation  Act  for  nursing 
services  furnished  by  the  wife  of  a  state  employee.  In  its  decision  the 
Accident  Board  had  allowed  the  claim  against  the  Commonwealth  in  the 
amount  of  $46,500.00. 

The  Commonwealth  certified  this  decision  to  the  Superior  Court  and 
appealed  from  that  court's  decree  to  the  Supreme  Judicial  Court.  After 
argument,  the  Supreme  Court  remanded  the  case  to  the  Accident  Board 
for  further  evidence.  On  November  18  and  25,  1969  further  testimony 
was  taken  and  on  February  18,  1970  final  arguments  were  completed  be- 
fore the  full  board  of  the  Industrial  Accident  Board. 

Thereafter,  the  Board  filed  a  new  decision  allowing  the  claim  in  the 
amount  of  $8,740.00  —  an  amount  $37,760.00  less  than  the  original 
award.  Both  the  Commonwealth  and  the  claimant  have  appealed  this  de- 
cision to  the  Superior  Court  where  the  matter  awaits  assignment. 

During  the  past  fiscal  year  a  total  of  7,317  accident  reports  were 
filed  regarding  state  industrial  accidents,  an  increase  of  6%  over  the 
prior  fiscal  year  and  an  increase  of  11%  over  the  1967-1968  fiscal 
year.  Of  the  lost  time  disability  cases,  this  Division  reviewed  and 
approved  1,305  new  claims  for  compensation,  representing  an  increase 
of  88  over  the  previous  fiscal  year  and  an  increase  of  177  over  the 
1967-1968  period.  The  Division  also  reviewed  and  approved  71  claims 
for  the  resumption  of  compensation. 

The  Division  appeared  for  the  Commonwealth  on  428  formal  assign- 
ments at  the  Industrial  Accident  Board  and  in  the  courts  on  appellate 
procedures.  Its  staff  members  also  participated  in  an  indeterminate 
number  of  informal  appearances  at  the  Accident  Board  including  those 


P.D.  12  23 

required  in  the  review  of  new  claims  for  evaluation  and  approval  by  the 
Attorney  General,  and  continuing  review  of  accepted  cases. 

Total  disbursements  by  the  Commonweahh  for  state  employees'  indus- 
trial accidents  claims,  including  accepted  cases,  board  and  court  deci- 
sions and  lump  sum  settlements,  for  the  period  July  1,  1969  to  June  30, 
1970,  were  as  follows: 

Industrial  Accident  Board  (General  Appropriation)  * 

Incapacity  compensation  $  1 ,499,998.07 

Hospital  costs,  drugs,  et  al.  234,865.17 

Doctors,  nurses,  et  al.  297,998.90 


$2,032,862.14 


Metropolitan  District  Commission*  * 

Incapacity  compensation  $    123,355.66 

Medical  and  Hospital  costs  35,417.78 


$    158,773.44 


Total  Disbursements 

Incapacity  compensation  $1,623,353.73 

Medical  and  Hospital  costs  568,28 1 .85 


$2,191,635.58 


•Appropriated  to  the  Division  of  Industrial  Accidents. 
**From  funds  appropriated  to  the  M.D.C.  for  payment  of   claims  envolving  M.D.C.  employees. 

In  its  capacity  as  custodian  of  the  second  injury  funds  under  section  65 
(General  Fund)  and  section  65N  (Veterans'  Fund)  of  Chapter  152,  the 
Division  represents  the  Commonwealth  before  the  Board  in  petitions  filed 
by  insurers  and  self-insurers  for  reimbursement  out  of  these  funds  (com- 
monly referred  to  as  the  "second  injury  funds"). 

It  is  also  necessary  for  staff  members  to  meet  with  insurers'  counsel 
to  adjust,  usually  by  negotiation,  payments  into  the  funds  in  those  fatal  in- 
dustrial accident  cases  where  the  issue  of  liability  has  been  in  question 
or  compromised. 

At  the  close  of  this  fiscal  year  the  General  Fund  showed  an  unen- 
cumbered balance  of  $110,898.95  with  payments  totalling  $12,009.46 
and  receipts  of  $6,200.00. 

The  Veterans'  Fund  showed  receipts  of  $115,475.00  and  payments 
of  $106,046.13  reflects  a  total  balance  of  $280,644.59  at  the  close  of 
the  fiscal  period. 

It  is  apparent  both  these  funds  are  operating  on  a  sound  fiscal  basis 
at  no  expense  to  the  taxpayers. 

Pursuant  to  section  llA  (Acts  of  1950,  c.  639,  as  amended),  the 
Chief  of  this  Division  represents  the  Attorney  General  as  a  sitting  member 
of  the  Civil  Defense  Claims  Board.  During  the  fiscal  year  over  35  such 
claims  were  acted  upon,  awarding  compensation  to  unpaid  civil  defense 
volunteers  who  were  injured  while  in  the  course  of  their  volunteer  duties. 


24  P.D.  12 

Public  Charities 

During  the  first  quarter  of  the  fiscal  year,  with  the  assistance  of  tem- 
porary summer  employees,  this  Division  completely  reviewed  its  files  of 
reports  by  public  charities  and  eliminated  all  reports  prior  to  1965  and  re- 
moved them  to  storage.  At  the  same  time  information  was  collected  for 
a  new  edition  of  the  Directory  of  Foundations  in  Massachusetts  which 
was  published  in  1965.  The  Committee  of  the  Permanent  Charity  Fund 
decided  it  could  not,  as  it  had  done  for  the  earlier  Directory,  make  a  grant 
to  publish  the  new  edition.  An  appropriation  was  sought  but  none  was 
made.  The  manuscript  notes  are  being  up-dated  as  new  reports  are 
filed  so  that  if  funds  become  available  a  new  edition  can  be  issued. 

In  the  fall  of  1969,  at  the  invitation  of  the  Supreme  Judicial  Court, 
an  amicus  curiae  brief  in  the  case  of  Grover  v.  Christian  Science  Benevo- 
lent Association,  involving  the  question  whether  the  Court  should  over- 
rule its  prior  decisions  as  to  the  immunity  of  charitable  organizations 
from  tort  liability,  was  prepared  and  filed  for  the  Attorney  General. 
Although  the  case  in  which  the  brief  was  filed  was  settled,  the  material 
was  prepared  in  a  form  to  be  of  assistance  to  the  Court  in  considering 
other  cases  before  it  involving  the  same  question.  The  brief  was  com- 
mended by  several  persons. 

The  appeal  from  the  decree  of  the  Norfolk  County  Probate  Court  in 
the  case  of  Trustees  of  Dartmouth  College  v.  City  of  Oiiincy,  1970  Ad. 
Sh.  809,  as  to  the  Woodward  Schools  For  Girls  was  sustained  by  the 
Supreme  Judicial  Court,  as  was  the  appeal  from  the  decree  of  the  Suf- 
folk County  Probate  Court  in  the  George  Edmund  Frost  estate.  Under 
the  decision  in  the  latter  case,  about  a  quarter  of  a  million  dollars  will 
be  paid  to  six  charitable  organizations. 

Among  cy-pres  proceedings  was  the  merger  of  the  Brooks  Hospital 
with  the  Lahey  Clinic.  In  separate  proceedings  a  decree  was  entered 
that  the  income  of  the  $1,250,000  fund  left  under  the  will  of  Dr.  Sias, 
the  founder  of  the  Brooks  Hospital,  for  the  support  of  the  research  lab- 
oratories at  the  Hospital  be  used  by  the  Lahey  Clinic  for  research  pur- 
poses. Changes  in  the  Ash  ton  Fund  for  wood  for  poor  widows  of 
Boston  were  approved  in  other  proceedings.  Other  cy-press  proceedings 
involved  the  Byzantine  Institute  at  Harvard  and  the  Alpha  Delta  Phi 
Fraternity  at  Williams  College.  Another  such  proceeding  related  to  the 
Herietta  Wright  Home  in  Northampton. 

Changes  in  administration  of  charities  were  effected  in  cases  relating 
to  Stonehill  College  and  the  Dr.  Nathan  Sidel  Fund  held  by  Beth  Israel 
Hospital.  A  use  of  funds  bequeathed  by  Edith  Fox  for  girl  scouting  in 
Arlington  for  what  is  in  effect  a  ground  lease  arrangement  at  Cedar  Hill 
in  Waltham  was  approved  by  the  Middlesex  Probate  Court. 

Proceedings  involving  sales  of  property  of  charities  included  land  in 
Billerica  devised  to  the  Roman  Catholic  Archdiocese  of  Boston  in  the  will 
of  Edward  T.  P.  Graham  and  sale  of  the  stock  of  Old  Mr.  Boston  Dis- 
tillers owned  by  the  E.  Sidney  Berkowitz  Foundation.  The  land  in  West- 
wood  left  to  Dedham  for  school  aid  by  Hannah  Shuttleworth,  was  by 
decree  of  the  Norfolk  Probate  Court  authorized  to  be  sold  to  Westwood 


P.D.  12  25 

to  be  used  for  school  purposes.  The  proceeds  of  the  sale  will  be  used  for 
school  purposes  in  Dedham. 

Will  contests  involving  charities  included  that  in  the  Oetinger  Estate 
in  Norfolk,  decided  in  favor  of  the  charities. 

In  the  Eleonora  Sears  estate,  a  compromise  agreement  was  assented  to 
with  regard  to  the  charitable  interests.  Separately,  another  section  of  the 
Department  worked  out  an  adjustment  with  Florida,  favorable  to  the 
Commonweahh,  as  to  the  tax  aspects. 

In  the  Whitmore  estate  in  Suffolk,  the  Probate  Court  decreed  that 
adopted  children  of  a  daughter  of  the  testator  who  died  without  issue 
could  not  take  under  a  provision  of  a  1901  will  providing  benefits  for  the 
issue  of  the  testator's  daughter  and  that  if  there  were  none  the  trust 
funds  should  be  paid  to  charity.  An  appeal  has  been  taken  to  the 
Supreme  Judicial  Court  by  the  adopted  children. 

The  Superior  Court  in  the  case  of  Lucas  v.  Archdiocesan  High  Schools 
dismissed  proceedings  brought  by  a  parents  group  with  regard  to  the 
closing  of  St.  Peter's  High  School  in  Gloucester.  The  petitioners  filed 
an  appeal  but  later  abandoned  it. 

An  appeal  was  taken  for  the  Attorney  General  from  the  decree  of  the 
Probate  Court  for  the  County  of  Franklin  in  the  George  W.  Davenport 
estate,  and  on  a  petition  to  the  Supreme  Judicial  Court,  operation  of  the 
decree  of  the  Probate  Court  was  suspended  pending  the  determination  of 
the  appeal. 

An  unusual  case  was  a  proceeding  in  the  Curran  estate  under  the  new 
statute  permitting  the  adoption  of  estate  plans  by  guardians  and  con- 
servators.   The  plan,  which  we  approved,  provided  a  large  gift  to  charity. 

A  few  cases  handled,  e.g.  the  Wrye  estate  in  Norfolk,  related  to  the 
manner  in  which  funds  for  the  poor  administered  by  municipal  welfare 
officials  should  be  handled  in  view  of  the  legislation  transferring  the 
welfare  assistance  program  to  the  State.  In  the  same  connection  a  bill 
was  prepared  and  filed  with  regard  to  the  status  of  the  Overseers  of  the 
Public  Welfare  in  Boston  as  a  separate  corporation,  under  early  statutes, 
for  the  purpose  of  administering  the  John  Boylston  and  other  funds  be- 
queathed for  aid  to  the  poor  of  Boston.  St.  1970,  c.  368,  changes  the 
name  of  the  corporation  to  the  Trustees  of  Charitable  Donations  for  In- 
habitants of  Boston  and  provides  for  the  naming  of  members  by  the 
Mayor. 

Cases  involving  interesting  questions  as  to  the  laws  applicable  to  wills 
in  the  period  included  that  in  the  estate  of  Joseph  A.  Stone  as  to  a 
claim  by  an  omitted  child  under  the  statute. 

Escheats  totaled  $146,356.05  in  the  period  ($21,369.69  for  the 
last  quarter).  In  addition  to  the  usual  public  administration  cases, 
escheats  also  resulted  from  lapsed  residuary  gift  of  testators  who  left  wills 
but  no  known  next  of  kin. 

Springfield  Office 

The  Springfield  office  of  the  Attorney  General  handles  matters  for  the 
Attorney  General  in  the  four  western  counties;  Hampden,  Hampshire,  Berk- 
shire and  Franklin.     The  primary  functions  are  basically  three;  Eminent 


26  P.D.   12 

Domain,  Consumer  Protection  and  Criminal.  With  the  exception  of 
Consumer  Protection  matters,  the  Springfield  office  is  not  the  office 
of  origin;  cases  are  referred  to  Springfield  from  the  Boston  office. 

A  member  of  the  staff  also  sits  on  the  Board  of  Insurance  Cancella- 
tion which  holds  hearings  once  a  month,  averaging  40  appeals  per  sitting. 
The  staff  has  represented  Westfield  State  College  at  meetings  involving 
student  demands  and  is  recently  appearing  for  the  College  in  the  suit  to 
enforce  these  demands.  The  University  of  Massachusetts  and  Holyoke 
Community  College  have  asked  at  various  times  for  assistance  on  internal 
problems.  There  are  presently  55  land  damage  cases  pending  in  Hamp- 
den County,  19  in  Franklin  County,  8  in  Hampshire  County  and  none 
in  Berkshire  County.  Also  awaiting  trial  are  15  tort  cases,  4  contracts 
cases,  7  welfare  cases,  2  public  charity  cases  and  2  workmen's  compen- 
sation cases. 

In  the  field  of  Consumer  Protection,  since  July  1,  1969  the  Spring- 
field office  opened  354  complaints  and  closed  348.  Consumer  Protection 
service  is  available  24  hours  a  day  seven  days  a  week,  and  savings  to  the 
public  to  June  30,   1970  are  computed  to  be  $34,716.13. 

Aside  from  these  three  main  divisions,  the  office  becomes  involved  in 
varied  and  divergent  aspects  of  law.  Town  Counsels  frequently  call  re- 
garding zoning  problems,  liquor  licensing  and  conflicts  of  interest.  We 
have,  and  do,  assist  the  Springfield  office  of  the  Department  of  Welfare. 
Members  of  the  staff  attend  meetings  of  Town  Selectmen  when  request- 
ed to  do  so  in  order  to  explain  Public  Health  Laws,  State  Building 
Requirements,  etc.,  and  fulfill  speaking  engagements  in  cooperation  with 
the  Drug  Abuse  Education  Program  and  in  the  area  of  Consumer 
Protection. 

Torts,  Claims  and  Collections 

The  Torts,  Qaims  and  Collections  Division  represents  the  Common- 
wealth, its  officers,  and  employees  in  tort  actions  arising  in  the  perform- 
ance of  their  official  duties. 

The  actions  range  from  motor  vehicle  actions,  malicious  prosecution, 
arrest,  false  imprisonment,  medical  malpractice,  assault  and  battery,  libel 
and  slander,  road  defects,  deer  damage  claims,  moral  claims,  to  Civil 
Rights  cases  raising  constitutional  issues. 

The  Division  also  represents  the  Registrar  of  Motor  Vehicles  and  the 
Motor  Vehicle  Appeal  Board  in  matters  of  judicial  review  under  the  Ad- 
ministrative Procedure  Act. 

The  bulk  of  the  cases  involved  motor  vehicle  accidents.  During  the 
fiscal  year  1970,  253  cases  were  tried  or  settled  and  $119,484.39  was 
paid  to  claimants  as  compared  to  230  and  401  cases  tried  or  settled,  with 
$95,595.76  and  $108,000.00  paid  respectively,  for  the  fiscal  years 
1968  and  1969. 

Highway  defect  claims  disposed  of  in  the  fiscal  year  were  6  compared 
to  14  in  the  previous  year.  In  addition,  103  small  claims  were  settled 
as  "moral  claims."  The  rise  in  the  costs  of  automobile  damage  has  made 
it  increasingly  difficult  for  the  section  to  function  within  the  $100,000.00 
annual  appropriation. 


P.D.   12  27 

A  uniform  system  of  processing,  investigating,  preparing  and  evaluat- 
ing claims  has  been  created  to  enable  the  entire  staff  to  function  more 
effectively  in  the  interests  of  the  Commonwealth  and  its  citizens. 

While  investigation,  property  damage  surveys,  thorough  case  prep- 
aration, negotiation  and  trial  can  hold  the  line,  the  primary  responsi- 
bility rests  with  each  department  to  reduce  accidents  by  such  steps  as 
the  proper  maintenance  of  safety  equipment,  an  on-going  driver  safety 
program  and  the  transfer  of  personnel  who  are  accident  prone. 

By  virtue  of  chapter  25 8 A,  an  act  providing  for  the  compensation  of 
victims  of  violent  crimes,  which  was  enacted  January  2,  1968,  the  Division 
has  the  responsibility  of  investigating  and  reporting  to  the  courts  on 
all  claims  of  out-of-pocket  loss  for  medical  bills,  loss  of  earnings  or 
support,  resulting  from  injuries  received  by  victims  of  violent  crimes. 
The  unreimbursed  loss  must  exceed  one  hundred  and  00/100  dollars 
($100.00)  and  the  victim  must  have  lost  at  least  two  continuous  weeks 
of  earnings.  The  number  of  claims  filed  in  the  fiscal  year  1970  was 
129  as  compared  to  55  for  the  fiscal  year  1969. 

A  uniform  system  of  reporting  and  court  findings  was  established  in 
conjunction  with  the  office  of  the  Chief  Justice  of  the  District  Courts. 

The  Collections  section  of  the  Division  recovered  $265,525.21  for 
the  Commonwealth  during  the  fiscal  year  1969,  as  compared  to 
$569,300.09  and  $326,989.37  in  1968  and  1969  respectively.  (De- 
cline due  to  some  extraordinary  litigation  in  1968.)  This  section  prin- 
cipally handles  claims  for  the  care  and  support  of  patients  at  state  hos- 
pitals and  for  damage  caused  to  state  property.  The  following  is  a  survey 
of  cases  involved  in  this  phase  of  the  Division's  work: 


Department  Involved 

Amount  Recovered 

No.  of  Claims 

Mental  Health 

$156,132.77 

80 

Public  Health 

24,957.63 

203 

Public  Works 

24,986.42 

227 

MDC 

22,327.41 

89 

Education 

4,877.87 

86 

State  Colleges 

3,102.16 

29 

Public  Safety 

4,903.84 

7 

Corporations  and  Taxation 

8,528.00 

1 

Adjutant  General 

537.93 

2 

Natural  Resources 

3,227.41 

5 

Commission  of  the  Blind 

66.45 

6 

Reg.  of  Motor  Vehicles 

519.85 

3 

Dept.  of  Correction 

1,628.49 

2 

Public  Welfare 

2,505.00 

2 

Div.  of  Waterways 

297.55 

18 

Industrial  Accident  Div. 

892.14 

4 

Dept.  of  Labor  and  Industries 

575.30 

1 

Div.  of  Employment  Security 

75.00 

1 

Soldiers  Home  (Holyoke) 

2,000.00 

1 

Soldiers  Home  (Chelsea) 

2,006.00 

1 

State  Secretary 

229.00 

10 

28  P.D.  12 

State  Treasurer  25.00  1 

Civil  Defense  Agency  364.51                         1 

Div.  of  Motor  Boats  100.00                         1 

Div.  of  Fisheries  and  Games  659.48  1 


Total  $265,525.21  782 

There  are  several  cases  pending  against  organizations  responsible  for 
ecological  damage  caused  by  oil  spills. 

This  year  a  uniform  system  of  reporting  and  processing  claims  has 
been  instituted  should  enable  the  section  to  be  even  more  effective  in 
recovering  monies  due  the  Commonwealth. 

Veterans 

The  Veterans'  Division  has  continued  to  assist  the  veterans  of  the 
Commonwealth  to  locate  and  secure  the  benefits  available  to  them  from 
the  various  local  state  and  federal  agencies  involved  in  veteran  services. 

The  Division  advises  all  veterans  and  veteran  groups  of  their  legal 
rights  and  duties. 


P.D.  12  29 

APPENDIX 

Bills  Proposed  by  Attorney  General  and  Enacted  by  the  1970  Legis- 
lature 

RESOLVES: 

—Chapter  22.  RESOLVE  PROVIDING  FOR  AN  INVESTIGATION  BY  THE 
JUDICIAL  COUNCIL  RELATIVE  TO  ESTABLISHING  A  CHILD 
ABUSE  DIVISION  WITHIN  THE  PROBATE  COURTS. 

—Chapter  49.  RESOLVE  PROVIDING  FOR  AN  INVESTIGATION  AND 
STUDY  BY  A  SPECIAL  COMMISSION  RELATIVE  TO  THE  MOTOR 
VEHICLE  INDUSTRY. 

ACTS: 

—Chapter  163.  AN  ACT  FURTHER  PRESCRIBING  THE  FORM  OF  RE- 
TAIL INSTALLMENT  SALE  AGREEMENTS  UNDER  THE  LAW  REL- 
ATIVE TO   RETAIL  INSTALLMENT  SALES  AND  SERVICES. 

—Chapter  177.  AN  ACT  RELATIVE  TO  PENALTIES  FOR  INTIMIDA- 
TION OF  JURORS,  WITNESSES  AND  OTHERS  IN  CONNECTION 
WITH  CRIMINAL  PROCEEDINGS. 

—Chapter  272.  AN  ACT  PROVIDING  A  RIGHT  OF  CANCELLATION 
FOR  CERTAIN  CONTRACTS  CONSUMMATED  AT  A  PLACE  OTHER 
THAN  THE  SELLER'S   PLACE   OF   BUSINESS. 

—Chapter  408.  AN  ACT  AUTHORIZING  THE  GRANTING  OF  IM- 
MUNITY TO  WITNESSES  UNDER  CERTAIN  CONDITIONS. 

—Chapter  457.  AN  ACT  SUBJECTING  CREDITORS  IN  CONSUMER 
TRANSACTIONS  TO  THE  DEFENSES  OF  THE  BORROWER. 

—Chapter  499.  AN  ACT  PROVIDING  FOR  RELEASE  ON  PERSONAL 
RECOGNIZANCE  WITHOUT  SURETY  AND  FOR  A  SPEEDY  APPEAL 
FROM   A   REFUSAL  TO   ORDER   SUCH    RELEASE. 

—Chapter  505.  AN  ACT  INCREASING  THE  CREDIT  FOR  EACH  DAY  OF 
CONFINEMENT  OF  A  PRISONER  COMMITTED  FOR  FAILURE 
TO  PAY  A  FINE. 

—Chapter  635.  AN  ACT  AUTHORIZING  THE  VOIDING  OF  CERTAIN 
MOTOR  VEHICLE  CONTRACTS  OF  SALE  BY  THE  BUYER  IF 
SAID  MOTOR  VEHICLE  CANNOT  PASS  THE  INSPECTION  STICK- 
ER TEST. 

—Chapter  665.  AN  ACT  FURTHER  LIMITING  THE  LIABILITY  OF  THE 
OWNER  OF  A  CREDIT  CARD  OR  OTHER  LIKE  CREDIT  DEVICE. 

—Chapter  666.  AN  ACT  PROVIDING  FOR  THE  PAYMENT  OF  INTER- 
EST ON  SECURITY  DEPOSITS  HELD  BY  LANDLORDS  IN  EXCESS 
OF  ONE  YEAR. 

—Chapter  710.  AN  ACT  AUTHORIZING  THE  ATTORNEY  GENERAL 
OR  HIS  DESIGNERS  TO  ENTER  THE  PREMISES  OF  A  PERSON 
LICENSED  TO  SELL  SECOND  HAND  MOTOR  VEHICLES  TO  EX- 
AMINE SUCH  VEHICLES  AND  RECORDS  RELATING  THERETO. 

—Chapter  711.  AN  ACT  AMENDING  THE  PROVISIONS  RELATING  TO 
JUDICL\L  REVIEW  OF  CERTAIN  DECISIONS  OF  THE  CVIL  SERV- 
ICE COMMISSION. 


30  P.D.   12 

—Chapter  736.  AN  ACT  MAKING  CERTAIN  CORRECTIVE  CHANGES  IN 
THE  CONSUMER  PROTECTION  LAW. 

—Chapter  795.  AN  ACT  PROVIDING  THAT  CERTAIN  DEPOSITS  OF 
DAMAGE  PAYMENTS  IN  CERTAIN  EMINENT  DOMAIN  CASES 
BE  PAID  TO  THE  TREASURER  OF  THE  BODY  POLITIC  OR  COR- 
PORATE ON  BEHALF  OF  WHICH  THE  TAKING  WAS  MADE,  AND 
DEPOSITED  BY  HIM  FOR  THE  BENEFIT  OF  THE  PERSONS  EN- 
TITLED THERETO. 

—Chapter  8H.  AN  ACT  PROVIDING  THAT  CERTAIN  TRAVELING  EX- 
PENSES AND  MEMBERSHIP  DUES  OF  DISTRICT  ATTORNEYS  BE 
PAID  BY  THE  COMMONWEALTH. 

—Chapter  822.  AN  ACT  RELATING  TO  THE  IMPOSITION  OF  FINANCE 
CHARGES  IN  CERTAIN  REVOLVING  CREDIT  AGREEMENTS  UN- 
DER THE  RETAIL  INSTALLMENT  SALES  AND  SERVICES  LAW. 

—Chapter  824.  AN  ACT  REQUIRING  CERTAIN  DISCLOSURES  IN  CER- 
TAIN RESIDENTIAL  REAL  ESTATE  TRANSACTIONS. 

—Chapter  827.  AN  ACT  TO  ABATE  OIL  POLLUTION  IN  THE  WATERS 
OF  THE  COMMONWEALTH. 

—Chapter  835.  AN  ACT  ESTABLISHING  A  CAREER  INCENTIVE  PAY 
PROGRAM  FOR  REGULAR  FULL-TIME  POLICE  OFFICERS  AND 
PROVIDING  FOR  PARTIAL  REIMBURSEMENTS  BY  THE  COM- 
MONWEALTH FOR  CERTAIN  CITIES  AND  TOWNS. 

—Chapter  878.  AN  ACT  PROVIDING  FOR  THE  CONTINUOUS  CLEAN- 
ING AND  DREDGING  OF  HARBORS  AND  INLAND  WATERS  TO 
IMPROVE  FISHING  AND  BOATING  AND  ESTABLISHING  THE 
HARBORS  AND  INLAND  WATERS  MAINTENANCE  FUND. 

—Chapter  880.  AN  ACT  PROVIDING  THAT  ANY  ATTEMPT  TO  EX- 
CLUDE OR  MODIFY  THE  WARRANTY  OF  MERCHANTABILITY 
OR  FITNESS  FOR  A  PARTICULAR  PURPOSE  IN  A  SALE  OF  CON- 
SUMER GOODS  SHALL  BE  UNENFORCEABLE. 

—Chapter  883.  AN  ACT  PROHIBITING  CERTAIN  COLLECTION  PRAC- 
TICES. 


P.D.  12  31 

No.  1  July  10,  1969 

HONORABLE  ALFRED  L.  FRECHETTE,  M.D. 

Commissioner  of  Public  Health 

Dear  Commissioner  Frechette : 

You  have  requested  my  opinion  on  a  certain  question  relating  to  the 
circumstances  under  which  the  Department  of  Pubhc  Health  may  issue  a 
license  to  an  infirmary,  a  convalescent  or  nursing  home  or  a  rest  home  or 
charitable  home  for  the  aged,  under  G.  L.  c.  1 1 1,  §  71. 

Section  71  provides  that  your  Department  may  not  license  such  an 
institution  unless  and  until  the  applicant  submits  "a  certificate  of  inspec- 
tion of  the  egresses,  the  means  of  preventing  the  spread  of  fire  and  ap- 
paratus for  extinguishing  fire,  issued  by  an  inspector  of  the  division  of 
inspection  of  the  department  of  public  safety  ..."  Until  1967,  §  71 
went  on  to  provide: 

"When  such  an  inspector  .  .  .  issues  to  an  applicant  for  a 
license  to  maintain  a  hospital,  sanatorium,  nursing  or  con- 
valescent home,  infirmary  maintained  in  a  town,  rest  home  or 
charitable  home  for  the  aged,  an  acknowledgment  of  an  appli- 
cation for  such  a  certificate,  it  shall  have  the  same  effect  as  the 
certificate,  and  the  department  shall  issue  a  provisional  approval 
for  temporary  operation  for  a  period  of  six  months." 

Thus,  your  Department  could,  in  effect,  issue  a  temporary  license  to 
an  institution  well  before  any  certificate  of  inspection  had  been  ob- 
tained. As  I  understand  it,  this  procedure  was  designed  to  allow  time 
for  the  Department  of  Public  Safety  to  make  the  necessary  inspection, 
and  also  to  permit  the  prospective  licensee  to  make  such  improvements 
as  might  be  required  to  obtain  the  certificate  without  being  prevented 
from  commencing  operations  in  the  meantime. 

The  above-quoted  provision,  however,  was  stricken  from  §  71  by  St. 
1967,  c.  891,  §  9.  In  view  of  this  deletion,  you  ask  my  opinion  as  to 
whether  your  Department  may  continue  to  honor  an  acknowledgment 
of  an  application  for  a  certificate  of  inspection  as  a  temporary  substitute 
for  the  certificate  itself,  for  purposes  of  licensing  institutions  under  G.  L. 
c.  Ill,  §71. 

The  answer  to  your  question  is  by  no  means  obvious.  One  compli- 
cating factor  is  a  provision  in  G.  L.  c.  143,  §  29,  relating  to  the  issuance 
of  certificates  of  inspection  by  the  Department  of  Public  Safety  for 
various  types  of  buildings,  whereby  the  inspector  is  required  to  issue  an 
acknowledgment  of  any  application  for  such  a  certificate,  "which  for 
ninety  days,  pending  the  granting  or  refusal  of  the  certificate,  shall 
have  the  same  effect  as  the  certificate.  .  .  .  (Emphasis  supplied.)  The 
same  provision  also  authorizes  the  inspector  to  renew  the  acknowledgment 
for  an  additional  period  of  up  to  ninety  days  "with  the  same  effect."  This 
provision  was  not  amended  by  the  1967  statute  referred  to  above,  and 
continues  in  effect  today.  Thus,  one  might  be  led  to  believe  that  the 
acknowledgment  provision  was  stricken  from  G.  L.  c.  Ill,  §  71  merely 
because  it  was  regarded  as  surplusage. 


32  P.D.   12 

On  balance,  however,  I  am  of  the  opinion  that  the  Legislature  did  in- 
tend to  change  the  substantive  law  when  it  deleted  the  provision  in 
question,  and  that  your  Department  may  no  longer  license  any  institution 
under  G.  L.  c.  Ill,  §  71,  provisionally  or  otherwise,  until  the  actual 
certificate  of  inspection  has  been  submitted.  I  base  this  conclusion  on 
certain  other  changes  which  the  Legislature  made  in  §  71  by  the  en- 
actment of  St.  1967,  c.  891,  §  9  —  which,  I  think,  reflect  a  deliberate 
intention  to  prohibit  issuance  of  licenses  under  §  71  before  receipt  of  a 
certificate  of  inspection. 

One  such  change  appears  in  the  fifth  paragraph  of  the  devised  §71: 

"Any  applicant  for  an  original  or  renewal  license  who  is 
aggrieved,   on   the   basis   of   a   written   disapproval   of   a   cer- 
tificate of  inspection  by  the  head  of  the  local  fke  department 
or  by  the  division  of  inspection  of  the  department  of  public 
safety,  may,  within  thirty  days  from  such  disapproval,  appeal 
in   writing   to   the   department   of  public   safety.      Failure   to 
either  approve  or  disapprove  within  thirty  days,  after  a  written 
request    by    an    applicant,    shall    be    deemed    a    disapproval." 
(Emphasis  supplied.) 
It  is  to  be  noted  that  under  this  procedure,  failure  by  the  Division  of 
Inspection  to  act  upon  an  application  for  a  certificate  of  inspection  for  a 
period  of  thirty  days  is  treated  as  a  disapproval.    Yet  G.  L.  c.  143,  §  29 
still   requires    that   Division   to   issue   the   usual   acknowledgment   upon 
receipt  of  the  application,  and,  under  the  old  version  of  G.  L.  c.   Ill, 
§  71,  that  acknowledgment  would  have  served  the  purpose  of  a  valid 
certificate  of  inspection  for  a  period  of  ninety  days.     Thus,  if  the  ac- 
knowledgment were  still  regarded  as  sufficient  to  authorize  die  issuance 
of  a  license  under  G.  L.  c.    Ill,   §  71,  failure  of  the  Division  of  In- 
spection to  act  upon  an  application  within  thirty  days  would  have  no 
effect.    This  would  be  directly  contrary  to  the  provisions  of  the  last  sen- 
tence of  the  paragraph  quoted  just  above. 

The  revised  §  71,  moreover,  goes  on  to  provide  that  the  applicant 
may  appeal  a  disapproval  by  the  Department  of  Public  Safety  to  the 
Superior  Court,  and  that  "[f]ailure  of  said  department  to  either  approve 
or  disapprove  the  issuance  of  a  certificate  of  inspection  within  thirty  days 
after  receipt  of  an  appeal  shall  be  deemed  a  disapproval."  Here  again, 
there  is  an  essential  inconsistency  between  the  new  appeal  procedure  and 
the  notion  that  an  acknowledgment  will  still  suffice  for  purposes  of  §  71. 
The  sentence  which  immediately  follows  the  foregoing  provision  in  the 
new  version  of  §  71  is,  I  think,  decisive: 

"No  original  license  shall  be  issued  or  no  license  shall  be 
renewed  by  the  department  of  public  health  until  issuance  of 
an  approved  certificate  of  inspection,  as  required  in  this  section." 
I  regard  this  as  a  plain  statement  by  the  Legislature  that  an  applicant 
must  have  a  certificate  of  inspection  before  he  may  be  granted  a  license 
under  §  71  —  that  a  mere  acknowledgment  of  his  application  for  such  a 
certificate  is  no  longer  sufficient. 

It  is  therefore  my  opinion  that  the  1967  amendment  to  G.  L.  c.  Ill, 
§  71  had  the  effect  of  carving  out  an  exception  to  the  acknowledgment 


P.D.  12  33 

provisions  of  G.  L.  c.  143,  §  29,  and  that  your  Department  may  no 
longer  grant  a  license  under  §  71  until  the  applicant  has  been  issued 
an  actual  certificate  of  inspection  by  the  Department  of  Public  Safety. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  2  July  28,   1969 

HONORABLE  GEORGE  G.  BURKE 

District  Attorney, 
Norfolk  District 

Dear  Sir: 

You  have  requested  my  opinion  as  to  whether  you  have  authority  pur- 
suant to  the  General  Laws,  c.  12,  §  20  (as  amended  by  c.  145  of  the  Acts 
of  1969)  to  appoint  additional  legal  assistants  to  your  staff.  Specifically, 
the  appointments  you  contemplate  making  would  be  for  a  three-month 
period  only  and  at  a  rate  of  compensation  of  two  thousand  dollars  for 
that  period.  It  is  my  opinion,  for  the  reasons  hereinafter  stated,  that  you 
may  make  such  appointments. 

The  General  Court  first  authorized  the  appointment  of  legal  assistants 
by  a  District  Attorney  in  c.  460  of  the  Acts  of  1906,  which  read  in  per- 
tinent part: 

"Section   3.     The  district  attorney  for   the   Suffolk  district 
may,  if  in  his  opinion  the  interests  of  the  Commonwealth  so 
require,  employ  additional  legal  assistants  with   the  approval 
of  the  chief  justice  of  the  superior  court  ..." 
In  the   1921   codification  of  the  General  Laws,  the  phrase  "if  in  his 
opinion  the  interests  of  the  Commonwealth  so  require"  was  inexplicably 
omitted,  and  that  omission  was  continued  in  the  Tercentenary  Edition  of 
the  General  Laws  in  1932.    In  1957,  the  section  was  amended  by  c.  694 
of  the  Acts  of  1957  to  provide  that  the  District  Attorney  of  the  Northern 
District  might  also  employ  additional  legal  assistants. 

General  Laws  c.  12,  §  20  was  further  broadened  by  c.  145  of  the 
Acts  of  1969,  to  which  you  refer,  to  provide  that  the  District  Attorney 
of  the  Norfolk  District,  which  position  you  now  hold,  might  employ  ad- 
ditional legal  assistants.     As  amended,  the  section  now  reads: 

"Section  20.  The  district  attorney  for  the  Suffolk  district, 
the  district  attorney  for  the  northern  district  and  the  district 
attorney  for  the  Norfolk  district  may  each  employ  additional 
legal  assistants,  with  the  approval  of  the  chief  justice  of  the 
superior  court.  The  length  of  time  of  such  employment,  which 
shall  in  no  instance  exceed  three  months,  and  the  amount  of 
compensation,  which  shall  in  no  instance  exceed  two  thousand 
dollars,  shall  be  determined  by  the  district  attorney,  with  the 
approval  of  said  chief  justice.  Such  compensation  shall  be  paid 
by  the  treasurer  of  Suffolk  county,  Middlesex  county  or  Norfolk 
county,  as  the  case  may  be,  upon  presentation  of  bills  approved 


34  P.D.  12 

by  the  district  attorney,  and  by  said  chief  justice  and  in  Suffolk 
county  by  the  auditor  thereof.  In  matters  connected  with  the 
work  for  which  he  is  so  employed,  an  attorney  shall  have  all 
the  powers  and  authority  of  an  assistant  district  attorney." 

I  note  that  you  intend  to  make  the  appointments  for  a  period  of  three 
months  and  to  pay  each  assistant  so  appointed  a  salary  of  two  tliousand 
dollars  for  that  period.  I  assume  that  such  appointments  will  be  made 
with  the  approval  of  the  Chief  Justice  of  the  Superior  Court,  not  only 
as  to  the  appointments  themselves,  but  also  as  to  the  duration  of  the 
appointments  and  the  compensation  to  be  paid.  It  is  for  the  Chief 
Justice  of  the  Superior  Court,  of  course,  by  virtue  of  the  requirement 
that  he  approve  the  appointments  and  the  duration  and  compensation 
thereof,  finally  to  decide,  by  his  approval,  whether  such  legal  assistants 
may  be  appointed,  and  if  so,  how  many,  and,  within  the  statutory  limits, 
for  how  long  and  at  what  compensation.  I  assume  also  that  the  neces- 
sary funds  are  legally  available. 

In  conclusion,  it  is  my  opinion  that  you  may  appoint  legal  assistants 
to  your  staff  subject  to  the  terms  and  conditions  set  forth  above. 

Very  truly  yours, 

ROBERT  H.  QUINN 
Attorney  General 

No.  3  July  25,  1969 

HIS  EXCELLENCY  FRANCIS  W.  SARGENT 

Governor  of  the  Commonwealth 
Commonwealth  of  Massachusetts 

Dear  Governor  Sargent: 

You  have  asked  my  opinion  as  to  the  constitutionality  of  House  No. 
5333,  entitled  AN  ACT  PROHIBITING  THE  INCITING  OF  A 
RIOT,  which  has  passed  both  branches  of  the  General  Court  and  which 
awaits  your  approval  or  disapproval.  This  bill  would  insert  a  new 
Section  lA  in  Chapter  269  of  the  General  Laws  which  would  read  as 
follows : 

"Whoever  urges  ten  or  more  persons  to  engage  in  tumultuous 
and  violent  conduct  of  a  kind  likely  to  create  public  alarm  shall 
be  guilty  of  inciting  a  riot  and  shall  be  punished  by  imprison- 
ment in  jail  for  six  months  or  by  a  fine  of  five  thousand  dollars 
or  both." 
You  state  that  a  question  has  been  raised  concerning  the  constitution- 
al validity  of  this  proposed  legislation  which  may  through  vagueness  or 
otherwise    invade    the    constitutionally    protected    area    of    freedom    of 
speech. 

While  I  recognize  that  House  No.  5333,  if  enacted  into  law,  would 
be  construed  by  the  Courts,  so  far  as  possible,  in  a  manner  which 
would  avoid  doubts  as  to  its  constitutionality  (Commonwealth  v.  Tirella, 
Mass.  Adv.  Sh.  (1969)  1075,  1076,  decided  June  25,  1969;  Opinion  of 
the  Justices,  341  Mass.  760,  785),  nonetheless,  it  is  my  opinion  that 


P.D.  12  35 

there  is  a  serious  doubt  as  to  the  constitutionality  of  this  proposed  legis- 
lation. 

It  is  a  general  rule  of  statutory  construction  that  a  "statute  which 
either  forbids  or  requkes  the  doing  of  an  act  in  terms  so  vague  that  men 
of  common  intelligence  must  necessarily  guess  at  its  meaning  and  differ 
as  to  its  application,  violates  the  first  essential  of  due  process  of  law." 
Connolly  v.  General  Construction  Co.,  269  U.  S.  385,  391.  Common- 
wealth V.  Slome,  321  Mass.  713,  715.  Commonwealth  v.  Carpenter, 
325  Mass.  519,  521.    Alegata  v.  Commonwealth,  353  Mass.  287,  293. 

"A  statute  creating  a  crime  must  be  sufficiently  definite  in  specifying 
the  conduct  that  is  commanded  or  inhibited  so  that  a  man  of  ordinary 
intelUgence  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."  See 
Commonwealth  v.  Slome,  321  Mass.  713,  715;  Commonwealth  v. 
Spindel,  351  Mass.  673,  678. 

Supreme  Court  decisions  have  "...  fashioned  the  prmciple  that 
the  constitutional  guarantees  of  free  speech  and  free  press  do  not  permit 
a  state  to  forbid  or  proscribe  advocacy  of  the  use  of  force  or  of  law 
violation  except  where  such  advocacy  is  directed  to  inciting  or  producing 
imminent  lawless  action  and  is  likely  to  incite  or  produce  such  action.  As 
we  said  in  Noto  v.  United  States,  367  U.  S.  290,  297-298  (1961),  'the 
mere  abstract  teaching  ...  of  the  moral  propriety  or  even  moral  neces- 
sity for  a  resort  to  force  and  violence,  is  not  the  same  as  preparing  a 
group  for  violent  action  and  steeling  it  to  such  action.'  See  also  Herndon 
v.  Lowry,  301  U.  S.  242,  259-261  (1937);  Bond  v.  Floyd,  385  U.  S. 
116,  134  (1966).  A  statute  which  fails  to  draw  this  distinction  im- 
permissably  mtrudes  upon  the  freedoms  guaranteed  by  the  First  and 
Fourteenth  Amendments.  It  sweeps  within  its  condemnation  speech 
which  our  Constitution  has  immunized  from  governmental  control.  Cf. 
Yates  V.  United  States,  354  U.  S.  298  (1957);  De  Jonge  v.  Oregon, 
299  U.  S.  353  (1937);  Stromberg  v.  California  283  U.  S.  359  (1931). 
See  also  United  States  v.  Robel,  389  U.  S.  258  (1967);  Keyishian  v. 
Board  of  Regents,  385  U.  S.  589  (1967);  Eljbrandt  v.  Russell,  384  U.  S. 
11  (1966);  Aphtheker  v.  Secretary  of  State,  378  U.  S.  500  (1964); 
Baggett  V.  Bullitt,  1>11  U.  S.  360  (1964)."  Brandenburg  v.  Ohio,  U.  S. 
,  5  Cr.  L.  3095,  3107-3108,  37  LW.  4525,  4525-4526  (June  9, 
1969).  The  proposed  legislation  does  not  draw  the  distinction  required 
by  the  opinions  cited  and,  in  my  opinion,  would  require  amendment  mak- 
ing this  distinction. 

The  bill  under  consideration,  in  my  opinion,  does  not  meet  either 
state  or  federal  standards  for  specificity.  The  bill  under  consideration 
does  not  use  the  word  "imminent"  or  its  equivalent.  The  word  "urge" 
does  not  necessarily  impart  a  sense  of  immediacy.  The  statute  may 
therefore  sweep  "...  within  its  condemnation  speech  which  our  Con- 
stitution has  immunized  from  governmental  control."  See  Brandenberg 
V.  Ohio,  U.  S.  5  Cr.  L.  3107,  3108,  37  L.W.  4525,  4526. 

The  Supreme  Court  of  the  United  States  has  said,  "Throughout  our 
decisions  there  has  recurred  a  distinction  between  the  statement  of  an 
idea  which  may  prompt  its  hearers  to  take  unlawful  action  and  advocacy 
that  such  action  be  taken."     See  Frankfurter,  J.  concurring  in  Dennis 


36  P.D.   12 

V.  United  States,  341  U.  S.  494,  545;  quoted  again  in  Yates  v.  United 
States,  354  U.  S.  298,  322;  Noto  v.  United  States,  367  U.  S.  290,  297. 
The  bill  under  consideration  fails  to  preserve  this  distinction.  You  may, 
in  your  judgment,  wish  to  suggest  an  amendment  in  this  respect. 

This  bill  also  offends,  in  my  opinion,  the  constitutional  principle  that 
"a  governmental  purpose  to  control  or  prevent  activities  constitutionally 
subject  to  state  regulation  may  not  be  achieved  by  means  which  sweep 
unnecessarily  broadly  and  thereby  invade  the  area  of  protected  free- 
doms." Zwickler  v.  Koota,  389  U.  S.  241,  249-250.  An  amendment  in  this 
area  also  would  be  needed. 

In  my  opinion  the  bill  is  also  too  vague.  "The  requirements  of 
clarity,  definiteness  and  narrow  scope  are  most  strictly  observed  when  a 
statute  places  a  possible  limitation  upon  First  Amendment  rights."  See 
Landry  v.  Daley,  280  F.  Supp.  938,  952,  re-argument  pending  in 
Supreme  Court  on  other  issues.  See  5  Cr.  L.  4073.  The  terms  "tumul- 
tuous and  violent  conduct"  and  "public  alarm"  are  not  defined  nor 
are  they  limited  by  prior  legal  definitions  to  violations  or  threatened 
violations  of  the  penal  law. 

In  Terminiello  v.  Chicago,  1948,  337  U.  S.  1,  5,  the  Supreme 
Court  struck  down  an  ordinance  which  "permitted  conviction  of  petitioner 
if  his  speech  stirred  people  to  anger,  invited  public  dispute  or  brought 
about  a  condition  of  unrest.  A  conviction  resting  on  any  of  those 
grounds  may  not  stand."  Public  alarm,  if  construed  as  "public  anger  or 
public  unrest",  is,  therefore,  not  a  constitutionally  permissible  standard. 
Appropriate  amendments  would  also  be  required  to  overcome  the  objec- 
tion of  vagueness. 

I  recognize,  of  course,  that  it  is  a  proper  public  purpose  for  the  Legis- 
lature to  prohibit  the  inciting  of  a  riot,  as  the  title  and  some  of  the 
language  of  this  bill  suggest  was  the  legislative  purpose.  However,  amend- 
ments in  the  areas  specified  would  have  to  be  proposed  by  you,  in  my 
opinion,  to  cure  the  constitutional  defects  in  the  present  draft. 

Respectfully, 

ROBERT  H.  QUINN 

Attorney  General 

No.  4  August  4,  1969 

STATE  RACING  COMMISSION 

Gentlemen: 

I  am  answering  your  letter  of  July  9,  1969,  in  which  you  request  my 
opinion  on  the  matters  set  forth  below,  and  in  which  letter  you  have 
stated  the  following  facts : 

Realty  Equities  Suffolk  Downs,  Inc.  (Suffolk)  has  filed  with  the 
State  Racing  Commission  (the  Commission)  as  of  July  8,  1969,  two 
supplementary  applications  for  licenses  to  hold  or  conduct  running  horse 
racing  meetings  at  the  Suffolk  Downs  race  track  located  in  Boston  and 
Revere,  in  Suffolk  County,  for  a  total  of  twenty-four  days  in  September 
and  October,  1969.  Suffolk  previously  had  applied  for  a  license  to 
conduct  a  running  horse  racing  meeting  at  the  same  Suffolk  Downs 


P.D.  12  37 

race  track  for  a  total  of  seventy-six  days  in  April,  May,  June  and 
July,  1969.  This  application  was  granted  for  a  total  of  sixty-six  days, 
the  license  applied  for  was  issued  and  the  sixty-six-day  meeting  was  held. 
On  January  29,  1969,  the  Commission  granted  eight  applications  by 
Berkshire  Downs,  Inc.  (Berkshire),  for  a  total  of  twenty-four  days  of 
running  horse  racing  to  be  held  in  July  and  August,  1969  at  Berkshire 
Downs  race  track  in  Hancock,  Berkshire  County.  I  infer  that  up  to 
June  12,  1969  no  license  had  issued  to  Berkshire  in  connection  with  these 
applications.  On  June  12,  1969,  the  Commission  voted  to  take  no 
further  action  with  respect  to  the  issuance  of  licenses  to  Berkshire  be- 
cause of  information  the  Commission  had  received  as  to  a  change  in 
ownership  of  Berkshire  and  information  that  Berkshire  intended  not  to 
hold  the  racing  meetings  applied  for. 

On  July  2,  1969,  Berkshire  informed  the  Commission  in  writing  that 
Berkshire  "withdrew  and  cancelled"  its  applications  for  1969,  that  Berk- 
shire would  not  accept  the  grant  of  these  applications  and  that  the 
"licenses  for  such  twenty-four  (24)  racing  days  for  Berkshire  Downs 
in  1969  have  never  been  issued;  and  will  not  be  requested  or  accepted  by 
us."  The  stated  reason  was  that  Berkshire  had  suffered  losses  aggregating 
$253,709.69  since  1964,  including  a  loss  of  $81,626.10  in  1968. 

You  have  asked  me,  in  substance,  to  advise  ( 1 )  whether  Suffolk's 
supplementary  applications  meet  the  requirements  of  G.  L.  c.  128 A,  §  2, 
so  far  as  Suffolk's  eligibility  to  file  those  applications  is  concerned;  and 
(2)  whether  the  Commission  has  the  power  to  grant  Suffolk's  supple- 
mentary applications.  I  assume,  for  the  purposes  of  this  opinion,  that 
the  facts  are  as  stated  (see  I  Op.  Atty.  Gen.  273,  275,  October  16, 
1895). 

(1)  General  Laws  c.  128 A,  §  2  provides,  in  part,  that  "...  a  supple- 
mentary application  by  a  licensee  for  a  subsequent  license  in  that  calendar 
year  relating  to  the  same  premises  and  the  original  application,  .  .  . 
may  be  filed  with  the  commission  at  any  time  prior  to  the  expiration 
of  said  year  ..."  (emphasis  added).  On  the  facts  you  have  stated, 
Suffolk  was  a  licensee  for  1969;  its  supplementary  applications  relate  to 
the  same  premises  and  are  for  the  same  calendar  year.  However,  a  sup- 
plementary application  must  additionally  "relate  to"  the  original  appli- 
cation. Suffolk's  original  application  was,  as  you  have  stated,  for  sev- 
enty-six days  of  racing  between  April  9,  1969  and  July  5,  1969,  or, 
alternatively,  such  number  of  racing  days  in  the  1969  racing  season 
commencing  and  ending  on  such  dates  permitted  by  law  as  the  Com- 
mission might  determine. 

"It  is  a  well  established  principle  of  statutory  interpretation 
that  '[n]one  of  the  words  of  a  statute  is  to  be  regarded  as 
superfluous,  but  each  is  to  be  given  its  ordinary  meaning  with- 
out overemphasizing  its  effect  upon  the  other  terms  appearing 
in  the  statute,  so  that  the  enactment  considered  as  a  whole 
shall  constitute  a  consistent  and  harmonious  statutory  pro- 
vision capable  of  effectuating  the  presumed  intention  of  the 
Legislature'."  Commonwealth  v.  Woods  Hole,  Martha's  Vine- 
yard and  Nantucket  S.  S.  Authy.,  352  Mass.  617,  618. 


38  P.D.   12 

In  my  view  the  proper  interpretation  of  the  words  "relating  to  .  .  , 
the  original  apphcation"  is  that  an  application  for  a  subsequent  license 
under  G.  L.  c.  128A,  §  2  is  limited  to  any  balance  of  the  number  of 
days  originally  applied  for  and  is  also  limited  to  the  date  originally 
specified. 

The  alternative  language  in  Suffolk's  original  application  is  sur- 
plusage. One  of  the  statutory  questions  which  must  be  answered  (Lan- 
ders V.  Eastern  Racing  Association,  327  Mass.  32)  requires  that  the 
applicant  specify  "the  days  on  v/hich  it  is  intended  to  hold  or  conduct 
such  meeting,  which  days  shall  be  successive  week  days,  Saturday  and 
Monday  being  considered  successive  week  days."  General  Laws  c.  128 A, 
§  2(4).  Any  language  in  the  application  in  answer  to  this  statutory  ques- 
tion that  purports  to  leave  it  to  the  Commission  to  determine  for  what 
dates  the  applicant  is  applying,  in  my  opinion,  is  not  properly  part  of 
the  answer  and  may  be  disregarded.  This  does  not  mean,  however,  that 
the  Commission  is  bound  by  dates  specified  in  an  original  application,  in 
approving  or  disapproving  an  original  application.  Although  this  question 
is  not  now  before  me,  it  is  my  view  that  the  Commission  on  an  original 
application  is  free  to  award  to  an  applicant  such  number  of  days  of  racing 
(up  to  ninety)  between  April  1  and  November  30  as  the  Commission's 
judgment  indicates. 

I  must  advise  you,  therefore,  that  on  the  facts  you  have  stated,  the 
Commission  could  approve  Suffolk's  supplementary  applications  for  only 
a  maximum  of  ten  racing  days  and  only  for  such  ten  days  between  April 
9,  1969  and  July  5,  1969.  On  the  facts,  therefore,  the  Commission  is 
not  authorized  to  approve  Suffolk's  supplementary  applications  smce  the 
period  April  9,  1969  through  July  5,  1969  has  expired. 

I  am  not  unaware  of  the  Commission's  concern  that  maximum  use 
be  made  of  the  racing  days  provided  for  by  the  statute.  However,  the 
Commission  had  originally  granted  to  Suffolk  sixty-six  days  and  to 
Berkshire  twenty-four  days  for  a  total  of  ninety  racing  dates.  It  is  only 
as  a  result  of  Berkshire's  surrender  of  their  twenty-four  days  that  aU 
ninety  days  of  racing  will  not  be  used  this  year.  However,  I  can  only 
interpret  the  statute  as  it  is  written  and  an  appropriate  amendment  to  so 
much  of  G.  L.  c.  128 A,  §  2  as  relates  to  supplementary  applications 
would  be  required  for  the  Commission  to  act  favorably  upon  Suffolk's 
applications. 

In  view  of  the  answer  I  have  given  to  the  first  question,  it  is  unneces- 
sary for  me  to  answer  your  second  question. 

Respectfully, 

ROBERT  H.  QUINN 

Attorney  General 

No.  5 

STATE  RACING  COMMISSION 

Gendemen: 

By  letter  dated  July  24,  1969,  you  have  requested  my  opinion  with 
respect  to  c.  546  of  the  Acts  of  1969  as  it  amends  G.  L.  c.  128A,  §5. 
You  have  asked  the  following  questions: 


P.D.  12  39 

"1.  What  is  the  proper  amount  that  should  be  withheld  from  the 
total  amount  wagered  at  running  horse  racing  meetings  held  in 
connection  with  state  or  county  fairs? 

Should  the  amount  be  17%  as  provided  in  the  third  para- 
graph of  Section  5  of  Chapter  12 8- A  of  the  G.  L.  —  plus  1% 
as  provided  in  Section  27  of  Chapter  546  of  the  Acts  of  1969 
—  making  a  total  of  18%  —  of  which  7^2%  as  provided  by 
Section  5  of  Chapter  128-A  of  the  General  Laws  shall  be  paid 
to  the  Commission  —  plus  1%  as  provided  in  Section  27  of 
Chapter  546  of  the  Acts  of  1969  —  making  a  total  of  8V2% 
to  the  Commission  —  and  tlie  remainder  or  9Vi%  being  re- 
tamed  by  the  licensee. 

OR 

"2.  Should  the  amount  be  15%  as  set  forth  in  the  fourth  para- 
graph of  Section  5  of  Chapter  128-A  of  the  G.  L.  —  plus 
1%  as  provided  in  Section  27  of  Chapter  546  of  the  Acts  of 
1969  —  making  a  total  of  16%  —  of  which  7Vi%  as  pro- 
vided by  Section  5  of  Chapter  128-A  of  the  General  Laws 
shall  be  paid  to  the  Commission  —  plus  1%  as  provided  in 
Section  27  of  Chapter  546  of  the  Acts  of  1969  —  making  a 
total  of  8V^%  to  the  Commission  —  and  the  remainder  or 
1V2%  being  retained  by  the  licensee." 

The  Commission  is  concerned  only  with  these  questions  as  they  re- 
late to  running  horse  racing  meetings  in  connection  with  state  or 
county  faks  and  this  opinion  is  so  limited. 

Chapter  546  of  the  Acts  of  1969  is  an  act  imposing  certain  taxes  to 
provide  needed  revenue  for  the  Commonwealth. 

Section  27  of  c.  546  provides  as  follows: 

"In  addition  to  any  amount  required  to  be  withheld  under 
the  provisions  of  section  five  of  chapter  one  hundred  and  twenty- 
eight  A  of  the  General  Laws,  by  a  licensee  conducting  a  horse 
or  dog  racing  meeting,  such  licensee  shall  withhold  an  amount 
equal  to  one  per  cent  of  the  total  amount  wagered  on  each 
day  of  such  meeting  and  shall  pay  the  same  to  the  state  racing 
commission  on  the  day  following." 

Under  the  provisions  of  this  section  of  the  act,  state  or  county  fairs 
conducting  running  horse  racing  meetings  must  withhold  an  amount  equal 
to  one  per  cent  of  the  total  amount  wagered  over  and  above  any  amount 
which  they  are  required  to  withhold  in  accordance  with  c.  128A,  §  5. 
This  additional  one  per  cent  withheld  must  be  paid  to  the  Commission 
on  the  day  after  it  is  withheld. 

The  relevant  portions  of  c.  128 A,  §  5,  as  amended,  now  read  as 
follows  with  the  bracketed  language  having  been  deleted  by  §§  30  and  31 
of  c.  546: 

"...  Each  licensee  conducting  a  racing  meeting  shall 
become  the  custodian  or  depository  for  such  sums  as  may  be 
deposited  with  such  licensee  by  patrons  as  wagers  on  the  speed 
or  ability  of  any  one  or  more  horses  or  dogs  in  a  race  or  races 


40  p.D.  12 

and  such  licensee  shall  be  responsible  for  such  sums  so  de- 
posited and  shall  return  to  the  winning  patrons  so  wagering 
on  the  speed  or  ability  of  any  one  or  more  horses  or  dogs  in 
a  race  or  races  all  sums  so  deposited  as  an  award  or  dividend, 
according  to  the  acknowledged  and  recognized  rules  and  method 
under  which  such  pari-mutuel  or  certificate  system  has  been 
operated,  less  the  breaks,  as  defined  in  this  section,  and  less  an 
amount  not  to  exceed  fifteen  per  cent  of  the  total  amount  so 
deposited  by  the  patrons  wagering  on  the  speed  or  ability  of 
running  horses  in  a  race  or  races  not  conducted  in  connection 
with  a  state  or  county  fair,  and  seventeen  per  cent  of  the  total 
amount  so  deposited  by  the  patrons  wagering  on  the  speed 
or  ability  of  running  horses  in  a  race  or  races  conducted  in 
connection  with  a  state  or  county  fair  .  .  . 

"Each  person  licensed  to  conduct  a  running  horse  racing 
meeting  [other  than  a  licensee  holding  a  racing  meeting  in  con- 
nection with  a  state  or  county  fair,]  shall  pay  to  the  commis- 
sion on  the  day  following  each  day  of  such  horse  racing  meet- 
ing a  sum  equal  to  seven  and  one  half  per  cent  of  the  total 
amount  deposited  on  the  preceding  day  by  the  patrons  so  wager- 
ing at  such  meeting,  said  percentage  to  be  paid  from  the  fif- 
teen per  cent  withheld,  as  provided  in  this  section,  from  the 
total  amount  wagered. 

"Each  person  licensed  to  conduct  a  dog  racing  meeting, 
[other  than  a  licensee  holding  a  racing  meeting  in  connection 
with  a  state  or  county  fair,]  shall  pay  to  the  commission,  on 
the  day  following  each  day  of  such  dog  racing  meeting,  a  sum 
equal  to  five  and  one  half  per  cent  ..." 

"[Each  person  licensed  to  conduct  a  racing  meeting  in  con- 
nection with  a  state  or  county  fair  shall  pay  to  the  commission 
on  the  day  following  each  day  of  such  meeting  a  sum  equal 
to  two  per  cent  of  so  much  of  the  total  amount  deposited  on 
the  preceding  day  by  patrons  so  wagering  at  such  meeting  as 
does  not  exceed  sixty-five  thousand  dollars,  five  and  one  half 
per  cent  as  exceeds  sixty-five  thousand  dollars,  said  percentages 
to  be  paid  from  the  seventeen  per  cent  withheld,  as  provided 
in  this  section,  from  the  total  amount  wagered.] 

"Each  person  licensed  to  conduct  a  harness  horse  racing 
meeting,  [other  than  a  licensee  holding  a  racing  meeting  in 
connection  with  a  state  or  county  fair,]  shall  pay  to  the  com- 
mission on  the  day  following  each  day  of  such  harness  horse 
racing  meeting  a  sum  equal  to  five  and  one  half  per  cent  ..." 
Sections  27,  30  and  31  of  c.  546  took  effect  upon  the  date  of  the 
passage  of  the  Act,  namely,  July  18,  1969. 

As  a  result  of  the  amendment  of  c.  128 A,  §  5,  the  above  questions 
arose  because  of  an  apparent  conflict  of  the  provisions  within  §  5. 
Paragraph  3  of  that  section  provides  that  commercial  tracks  conducting 
running  horse  racing  meetings  are  authorized  to  withhold  fifteen  per 
cent  of  the  total  amount  wagered,  whereas  state  or  county  fairs  conducting 
the  same  type  of  racing  are  authorized  to  withhold  seventeen  per  cent. 


P.D.  12  41 

Paragraph  4  of  the  same  section  then  provides  that  each  person  licensed 
to  conduct  running  horse  racing  shall  pay  to  the  Commission  seven  and 
one-half  per  cent  of  the  total  amount  wagered  the  preceding  day,  the 
seven  and  one-half  per  cent  to  be  paid  for  the  fifteen  per  cent  with- 
held from  the  total  amount  wagered. 

The  basic  rules  of  statutory  construction  require  that  the  various 
provisions  in  a  statute,  if  reasonably  possible,  be  read  together  so  as  to 
make  the  statute  a  consistent  and  harmonious  whole,  giving  effect  to 
all  the  provisions  thereof.  Real  Properties  Inc.  v.  Board  of  Appeal  of 
Boston,  311  Mass.  430;  Hinckley  v.  Retirement  Bd.  of  Gloucester,  316 
Mass.  496.  In  addition,  the  intention  of  the  Legislature  is  to  be  deduced 
from  every  material  part  of  the  statute  and  the  interpretation  to  be 
placed  upon  it  is  to  be  determined  from  its  apparent  intent,  as  gathered 
from  the  context,  as  well  as  from  the  language  of  a  particular  pro- 
vision.    Commonwealth  v.  Mekelburg,  235  Mass.  383. 

Applying  these  principles  to  the  present  language  of  §  5,  it  is  apparent 
that  the  Legislature,  as  a  result  of  this  amendment,  intended  to  increase 
the  tax  revenue  coming  to  the  Commonwealth  by  eliminating  the  favored 
tax  treatment  previously  accorded  to  state  or  county  fairs  by  now  taxing 
them  in  the  same  manner  as  commercial  tracks  conducting  the  same  type 
of  racing.  This  purpose  is  clearly  evident  from  a  reading  of  §  5  as 
amended. 

The  obvious  intent  of  the  Legislature,  then,  in  passing  c.  546,  was  to 
provide  additional  tax  revenue.  However,  there  is  no  intent  manifested 
by  the  Legislature  to  change  or  affect  that  part  of  §  5  which  sets  forth 
the  amount  to  be  withheld  from  the  total  amount  wagered  by  commercial 
tracks  as  distinguished  from  state  or  county  fairs.  The  Legislature  did 
not  see  fit  to  eliminate  the  distinction  between  commercial  tracks  and 
state  or  county  fairs  in  this  regard  although  it  could  have  done  so  very 
easily  if  this  had  been  the  intent  of  c.  546. 

In  my  view,  c.  546  did  not  affect  the  provisions  of  paragraph  3  of  § 
5,  and  I  advise  you  that  state  or  county  fairs  are  authorized  to  withhold 
an  amount  up  to  seventeen  per  cent  of  the  total  amount  wagered.  The 
provisions  of  paragraph  4  of  §  5,  as  amended,  must  be  read  together 
with  the  provisions  of  paragraph  3  so  as  to  make  the  statute  a  consistent 
and  harmonious  whole.  The  state  or  county  fairs  are  to  pay  the  Com- 
mission seven  and  one-half  per  cent  of  the  total  amount  wagered  on  the 
preceding  day,  plus  the  one  per  cent  provided  for  in  §  27  of  c.  546  of 
1969,  and  the  eight  and  one-half  per  cent  is  to  be  paid  from  the  amount 
withheld  by  the  state  or  county  fair. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  6  August  22,   1969 

HONORABLE  ROBERT  Q.  CRANE 

Chairman,  State  Retirement  Board 

Dear  Mr.  Chairman: 

By  letter  dated  July  29,  1969,  you  set  forth  seven  questions  with  respect 
to  Public  Law  90-486,  enacted  August  13,  1968,  which  classifies  tech- 


42  P.D.  12 

nicians  employed  by  the  Army  and  Air  National  Guards  of  the  fifty 
states  and  Puerto  Rico  as  federal  employees.  Briefly,  you  ask  if,  in  view 
of  the  Public  Law,  technicians  may  elect  to  remain  in  die  state  retirement 
system,  or  may,  under  certain  varying  factual  circumstances,  retire  under 
the  state  retirement  system  (or  elect  to  defer  their  retirement),  there- 
upon joining  the  federal  civil  service  retirement  system.  You  also  ask  if 
technicians  may  elect  to  remain  in  the  state  insurance  program.  Specif- 
ically, the  questions  you  posed  are: 

"1.  Since  Public  Law  90-486  classifies  all  technicians  of  the 
Army  and  Air  National  Guard  as  federal  employees  and  since 
it  also  provides  that  those  technicians  who  are  members  of  a 
state  retirement  system  on  the  effective  date  of  the  legislation 
may  elect  to  remain  in  that  state  retirement  system  rather 
than  accept  membership  in  the  federal  civil  service  retirement 
system,  wiU  M.  G.  L.  A.,  Chapter  32  permit  continuous  mem- 
bership in  the  state  retirement  system  so  long  as  the  tech- 
nicians remain  employed  as  technicians? 
"2.  Assuming  that  your  answer  to  question  number  1  is  in  the 
affirmative,  may  a  technician,  classified  by  Public  Law  90- 
486  as  a  federal  employee,  who  has  attained  the  age  of  45  years 
and  who  is  eligible  for  retirement  under  the  state  retirement 
system,  exercise  the  option  provided  so  as  to  effect  the  de- 
ferment of  his  retirement  under  the  state  retirement  system 
while  concomittantly  [sic]  accepting  a  new,  separate,  and  dis- 
tinct membership  with  the  federal  civil  service  retirement  sys- 
tem? 
"3.  Assuming  that  your  answer  to  question  number  1  is  in  the 
affermative,  may  a  technician,  classified  by  Public  Law  90-486 
as  a  federal  employee,  who  has  attained  the  age  of  45  years  and 
who  is  eligible  for  retirement  under  the  state  retirement  system, 
exercise  the  option  provided  so  as  to  effect  his  retirement  under 
the  state  retirement  system  while  concomittantly  (sic)  accepting 
a  new,  separate,  and  distinct  membership  with  the  federal  civil 
service  retirement  system? 
"4.  Assuming  that  your  answer  to  question  number  1  is  in  the 
affirmative,  may  a  technician,  classified  by  Public  Law  90-486 
as  a  federal  employee,  who  has  not  yet  attained  the  age  of  45 
years  but  who  is  otherwise  eligible  for  retirement  from  the  state 
retirement  system,  exercise  the  option  provided  so  as  to  effect 
the  deferment  of  his  retirement  under  the  state  retirement  system, 
while  concomittantly  (sic)  accepting  a  new,  separate,  and  dis- 
tinct membership  with  the  federal  civil  service  retirement  system? 
"5.  Assuming  that  your  answer  to  question  number  1  is  in  the 
affirmative,  may  a  technician  classified  by  Public  Law  90-486 
as  a  federal  employee,  who  has  not  yet  attained  the  age  of  45 
years  but  who  is  otherwise  eligible  for  retirement  from  the  state 
retirement  system,  exercise  the  option  provided  so  as  to  effect 
his  retirement  under  the  state  retirement  system  while  concom- 
ittantly (sic)  accepting  a  new,  separate,  and  distinct  member- 
ship with  the  federal  civil  service  retirement  system? 


P.D.  12  43 

"6.  In  as  much  (sic)  as  Public  Law  90-486  classifies  all  tech- 
nicians employed  by  the  Army  and  Air  National  Guards  of  the 
50  states  and  Puerto  Rico  as  federal  employees  but  does  not 
provide  that  those  technicians  who  are  members  of  a  state  in- 
surance plan  on  the  effective  date  of  the  legislation  may  elect 
to  remain  in  the  state  insurance  plan  rather  than  accept  mem- 
bership in  the  federal  insurance  plan,  does  Public  Law  90-486 
preclude  membership  in  the  state  insurance  program  outlined 
by  M.G.L.A.,  Chapter  32  A? 

"7.  Assuming  that  your  answer  to  question  number  6  is  in  the 
negative,  does  a  technician,  classified  by  Pubhc  Law  90-486  as 
a  federal  employee,  satisfy  the  requirements  of  M.G.L.A., 
Chapter  32  A  so  as  to  render  him  eligible  for  membership  in 
the  state  insurance  program?" 

In  considering  your  questions,  I  have  carefully  reviewed  the  provisions 
of  the  National  Guard  Technicians  Act  of  1968  (PubUc  Law  90-486) 
together  with  the  Report  of  the  Senate,  No.  1446,  90i;h  Congress,  2nd  Ses- 
sion, dated  July  22,  1968  and  the  Report  of  the  House  Armed  Services 
Committee,  No.  1823,  July  31,  1968.  in  classifying  technicians  as  federal 
employees,  the  House  Committee  stated  that  one  of  the  purposes  of  the 
legislation  was  "(a)  to  provide  a  retirement  and  fringe  benefit  program 
which  will  be  both  uniform  and  adequate  ..."  U.S.  Code  Congressional 
and  Administrative  News,  90th  Congress,  2nd  Session,  p.  3883.  Later  in 
its  Report,  the  House  Committee  stated: 

"As  Federal  employees  the  technicians  would  be  covered 
under  the  laws  providing  for  the  various  fringe  benefits  for  Fed- 
eral employees  including  group,  health  and  IKe  insurance,  leave, 
Federal  employees  death  and  injury  compensation,  severance 
pay,  tenure  and  status."  /^.  at  3888. 

Although  PubUc  Law  90-486  provides  a  comprehensive  Federal  retire- 
ment and  fringe  benefit  program  for  National  Guard  technicians,  section 
6(a)  thereof  specifically  permits  technicians  who  are  members  of  state 
retirement  systems  to  elect  to  remain  in  those  systems : 

"Sec.  6.  (a)  Notwithstanding  section  709(d)  of  title  32, 
United  States  Code,  a  person  who,  on  the  date  of  enactment  of 
this  Act,  is  employed  under  section  709  of  title  32,  United  States 
Code,  and  is  covered  by  an  employee  retirement  system  of,  or 
plan  sponsored  by,  a  State  or  the  Commonwealth  of  Puerto 
Rico,  may  elect,  not  later  than  the  effective  date  of  this  Act,  not 
to  be  covered  by  sub-chapter  III  of  chapter  83  of  title  5,  United 
States  Code,  and  with  the  consent  of  the  State  concerned  or 
Commonwealth  of  Puerto  Rico,  to  remain  covered  by  the  em- 
ployee retirement  system  of,  or  plan  sponsored  by,  that  State 
or  the  Commonwealth  of  Puerto  Rico." 

That  section  was  summarized  by  the  House  Committee  as  follows: 

"Section  6  (a)  provides  for  an  election  between  the  date  of 
the  enactment  of  this  legislation  and  its  effective  date  (the  furst 
day  of  the  first  pay  period  that  begins  on  or  after  January  1, 
1969)  by  technicians  who  were  covered  by  a  State  retirement 


44  P.D.  12 

program  as  to  whether  they  will  remain  under  that  program.  The 
consent  of  the  .State  would  also  be  required  if  an  affirmative 
election  is  made.  This  would  protect  the  equity  of  technicians 
with  long  periods  of  covered  State  service."  Id.  at  3902-3903. 

Section  6(c)  of  the  Act  provides  for  continued  federal  contributions  to 
state  retirement  programs  on  behalf  of  those  technicians  who  make  the 
election  allowed  by  section  6(a). 

In  view  of  the  explicit  authorization  provided  in  Public  Law  90-486, 
permitting  technicians  to  remain  as  members  of  state  retirement  systems, 
there  is  nothing  in  Chapter  32  of  the  General  Laws  which  would  prohibit 
membership  in  the  state  retirement  system.  Section  3  of  Chapter  32  pro- 
vides that  "any  employee  as  defined  in  section  one"  is  ehgible  for  mem- 
bership in  the  state  retirement  system.  The  definition  of  "employee"  in 
section  one  includes  "persons  whose  regular  compensation  is  paid  by  the 
United  States  from  funds  allocated  to  the  Massachusetts  National  Guard" 
provided  such  person  "is  regularly  and  permanently  employed  under  the 
control  of  the  military  department  of  the  Commonwealth  and  whose  duties 
in  such  employment  require  substantially  all  normal  working  hours."  If 
the  technicians  meet  these  latter  qualifications,  they  would  be  eligible  for 
membership  in  the  state  retirement  system.  I  therefore  answer  your  first 
question  in  the  affirmative. 

Your  questions  2,  3,  4  and  5  present  for  consideration  the  question 
whether  Massachusetts  National  Guard  technicians  who  were  eligible  for 
either  an  immediate  or  a  deferred  annuity  on  December  31,  1968,  under 
the  State  retirement  system,  lost  that  entitlement  when  they  became  cov- 
ered by  the  Federal  retirement  system  on  January  1,  1969.  The  ques- 
tions relate,  then,  only  to  those  technicians  who  did  not  elect  to  remain 
covered  by  the  State  retirement  system  on  and  after  January  1,  1969. 
It  is  my  opinion  that  the  technicians  lost  no  rights  in  this  respect.  The 
Senate  Report,  No.  1446,  is  replete  with  references  to  the  vested  interests 
technicians  had  acquired  in  future  annuities  under  the  various  State  re- 
tirement systems.  See  Senate  Report,  pp.  4,  9,  and  17.  In  contrast, 
there  is  nothing  in  the  Act  to  prohibit  a  technician  from  effecting  his 
retirement  (or  deferring  such  retirement)  in  the  State  retirement  system 
on  December  31,  1968,  and,  thereafter,  joining  the  Federal  retirement 
system  on  January  1,  1969  as  a  Federal  employee.  I  likewise  find  noth- 
ing in  G.  L.  c.  32  which  would  prohibit  such  a  course  of  action. 

As  stated  above.  House  Report  No.  1823  indicates  that  Congress  in- 
tended technicians  to  be  subject  to  a  uniform,  Federal  fringe  benefit 
program.  The  question  of  insurance  coverage  for  technicians,  however, 
raises  a  unique  problem.  Conventional  Federal  employees  may  be  entitled 
to  post-retirement  insurance  coverage,  if  they  have  twelve  years  of 
Federal  service.  5  U.  S.  C.  §  8706.  But,  technicians  who  elected  to 
remain  in  the  State  retirement  system  are  not  eligible  for  post-retirement 
insurance  coverage,  even  though  they  must  participate  in  the  Federal 
fringe  benefit  program  for  the  duration  of  their  active  service  as  tech- 
nicians. This  much  is  made  clear  by  section  6(c)  of  the  Public  Law, 
which  provides  in  pertment  part: 

"A  person  who  retires  pursuant  to  his  valid  election  shall 
not  be  eligible  for  any  rights,  benefits,  or  privileges  to  which 


P.D.  12  45 

retired  civilian  employees  of  the  United  States  may  be  entitled." 
Id.  at  3539. 

In  enacting  Public  Law  90-486,  Congress  intended  that  technicians 
be  subject  to  a  uniform  Federal  retirement  ond  fringe  benefit  program. 
An  exception  was  carved  out  to  the  effect  that  technicians  might  elect 
to  remain  covered  by  the  State  retirement  system,  but  no  such  election 
was  permitted  with  respect  to  the  State  fringe  benefit  program.  It  appears, 
then,  that  technicians  who  are  currently  covered  by  the  Federal  fringe 
benefit  program  may  not,  at  the  same  time,  participate  in  a  similar  State 
program.  In  my  opinion  such  dual  participation  would  run  counter  to 
the  overall  legislative  intent  that  the  fringe  benefits  available  to  tech- 
nicians be  uniform. 

However,  technicians  who  elected  to  remain  covered  by  the  State  re- 
tirement system  are  not  precluded  by  the  provisions  of  Public  Law  90- 
486  from  obtaining  post-retirement  insurance  coverage,  once  they  have 
retired  as  technicians  from  the  Federal  service.  The  legislative  history 
indicates  that  Congress  envisioned  post-retirement  insurance  coverage 
through  State  plans,  where  available.     The  Senate  Report  stated: 

"[TJechnicians  who  remain  in  a  State  system  would  not  be 
covered  after  retirement  for  any  of  the  fringe  benefits   such 
as  health   and  Ufe  insurance  which   are   available   to  persons 
retired  under  the  Federal  civil  service  system.     Any  benefits  of 
this  nature  would  depend  on  coverage  under  the  State  retire- 
ment system."    S.  Rep.  No.  1446,  p.  14. 
I  therefore  conclude,  in  answer  to  your  question  6,  that  technicians  may 
not  be  covered  under  the  State  fringe  benefit  program  for  the  duration  of 
their  service  as   technicians,   although  they  may  obtain  State   coverage 
once  that  service  has  been  terminated,  provided  they  made  a  valid  elec- 
tion to  be  covered  by  the  State  retirement  system. 

Your  question  7  asks  if  a  technician  satisfies  the  requirements  of 
G.  L.  c.  3 2 A,  so  as  to  render  him  eligible  for  membership  in  the  state 
insurance  program.  In  my  opinion,  a  technician  who  has  retired  from 
Federal  service  and  who  elected  to  remain  covered  by  the  State  retire- 
ment system  would  be  eligible  for  membership  in  the  State  insurance  plan, 
for  substantially  the  same  reasons  as  outlined  in  my  answer  to  your  first 
question.  Both  G.  L.  c.  32  and  32A  provide  that  national  guard  tech- 
nicians come  within  the  definition  of  "employee"  for  the  purposes  of 
those  chapters,  and,  subject  to  the  restrictions  expressed  in  the  Federal 
Act,  technicians  are  eligible  for  membership  in  the  State  insurance  plan. 
The  Federal  restrictions,  however,  as  noted  in  my  answer  to  your  question 
6,  confine  such  membership  to  the  class  of  technicians  who  have  retired 
from  Federal  service  but  who  elected  on  or  before  December  31,  1968 
to  remain  covered  by  the  State  retirement  system. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 


46  P.D.  12 

No.  7  August  22,  1969 

HIS  EXCELLENCY  FRANCIS  W.  SARGENT 

Governor  of  the  Commonwealth 

Dear  Sir: 

You  have  requested  my  opinion  as  to  whether  the  position  of  Com- 
missioner of  Youth  Services,  established  by  H.  5492,  "AN  ACT  ESTAB- 
LISHING A  DEPARTMENT  OF  YOUTH  SERVICES,"  requkes  Execu- 
tive Council  approval  pursuant  to  the  provisions  of  Part  2,  c.  2,  §  1, 
art.  9  of  the  Constitution  of  the  Commonwealth.  Your  letter  states  that 
the  engrossed  bill  presently  before  you  contains  a  provision  in  line  6  of 
Section  1  to  the  effect  that  the  appointment  of  the  Commissioner  requires 
the  advice  and  consent  of  the  Executive  Council. 

House  5492  is  described  in  yom*  letter  as  follows: 

"The  bill  abolishes  the  Youth  Services  Board  and  the 
Division  of  Youth  Services  in  the  Department  of  Education, 
and  reforms  the  Commonwealth's  method  of  treating  juvenile 
offenders.  It  creates  a  new  department  of  the  executive  branch 
of  government,  the  Department  of  Youth  Services,  under  the 
supervision  of  a  Commissioner  of  Youth  Services.  The  Com- 
missioner will  serve  for  a  term  of  years  coterminus  with  that 
of  the  Governor.  His  department  wUl  consist  of  the  follow- 
ing four  bureaus,  each  headed  by  an  Assistant  Commissioner: 
(1)  Clinical  Services,  (2)  Aftercare,  Delinquency  Prevention, 
and  Community  Services,  (3)  Educational  Services,  and  (4) 
Institutional  Services. 

"The  bureau  of  CUnical  Services,  headed  by  a  psychiatrist, 
will  have  exclusive  responsibility  for  diagnosing  and  prescrib- 
ing care  and  treatment  for  those  youths  committed  to  the 
department  by  the  courts  under  the  provisions  of  an  amended 
Chapter  119.  In  addition,  the  department  will  place  new  em- 
phasis on  identifying  the  underlying  causes  of  delinquency 
and  on  community  services  for  its  prevention." 

Part  2,  c.  2,  §  1,  art.  9  of  the  Constitution  of  the  Commonwealth 
provides : 

"IX.  All  judicial  oflBcers,  the  solicitor-general,  [and]  cor- 
oners, shall  be  nominated  and  appointed  by  the  governor,  by 
and  with  the  advice  and  consent  of  the  council;  and  every  such 
nomination  shall  be  made  by  the  governor,  and  made  at  least 
seven  days  prior  to  such  appointment." 

If  the  appointment  of  the  Commissioner  of  Youth  Services  requires  "the 
advice  and  consent  of  the  council,"  it  is  because  that  position  is  one  of  a 
judicial  officer  within  the  meaning  of  art.  9.  It  is  my  opinion  that  the 
Commissioner  of  Youth  Services  is  not  a  judicial  officer  within  the  mean- 
ing of  art.  9,  and  his  appointment,  therefore,  does  not  require  the  advice 
and  consent  of  the  Executive  Council. 

The  duties  of  the  Commissioner  include  supervision  of  the  four 
bureaus  of  the  Department,  among  which  is  the  Bureau  of  Clinical 
Services.    That  Bureau  is  responsible  for  the  care  and  treatment  of  youths 


P.D.  12  47 

"committed  to  the  department  by  the  courts  ..."  The  Commissioner's 
duties,  therefore,  cannot  be  said  to  be  "judicial"  in  nature.  In  Burnside 
V.  Bristol  County  Board  of  Retirement,  352  Mass.  481,  the  Supreme 
Judicial  Court  stated : 

"[TJhere  is  a  distinction  between  'judicial  officers  whose 
sole  function  it  is  to  determine  rights  and  duties  .  .  .  [and] 
another  class  of  officers  to  carry  into  effect  the  decisions  and 
decrees  made  by  the  courts.'  This  latter  class  of  officer  is 
certainly  not  a  'judicial  officer'  within  the  meaning  of  Part 
2,  c.  2,  §  1,  art.  9,  or  Part  2,  c.  3,  art.  1  of  the  Massachusetts 
Constitution  ..."  352  Mass.  at  482. 

See,  also,  Opinion  of  the  Justices,  353  Mass.  801,  wherein  the  Justices 
determined  that  a  sheriff  was  not  a  judicial  officer  within  the  meaning  of 
Part  2,  c.  2,  §  1,  art.  9,  because  a  sheriff's  "function  is  to  carry  into 
effect  decisions,  decrees  and  orders  made  by  the  courts."  353  Mass.  at 
803. 

In  my  opinion,  the  Commissioner  of  Youth  Services  will  have  duties 
similar  to  the  duties  of  a  sheriff.  His  responsibilities  will  relate  to  the 
execution  of  decisions  of  the  courts,  following  appropriate  judicial  pro- 
ceedings. Although  the  Commissioner  may  have  wide  latitude  and  dis- 
cretion as  to  the  care  and  custody  of  youths  committed  to  the  Depart- 
ment, the  exercise  of  such  discretion  would  not,  in  my  opinion,  place  the 
position  of  Commissioner  within  the  category  of  "judicial  officers." 
Sheriffs  and  wardens  of  prisons  exercise  similar  discretion  with  respect  to 
the  custody  of  persons  committed  to  their  care. 

In  conclusion,  then,  it  is  my  opinion  that  Part  2,  c.  2,  §  1,  art.  9  of  the 
Constitution  of  the  Commonwealth  does  not  require  that  the  appointment 
of  the  Commissioner  of  Youth  Services  receive  the  advice  and  consent 
of  the  Executive  Council. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  8  August  21,  1969 

HONORABLE  ARTHUR  W.  BROWNELL,  Chairman 
Water  Resources  Commission 

Dear  Sir: 

In  your  recent  letter  you  indicate  that  a  question  has  arisen  as  to 
whether  the  rehabilitation  of  tide  gates  appurtenant  to  the  Boston  Main 
Drainage  System^  is  the  responsibility  of  the  City  of  Boston,  or  whether 
it  is  the  responsibility  of  the  Metropolitan  District  Commission,  and  you 

IThe  main  drainage  system  of  the  City  of  Boston  is  a  "combined"  sewer  system,  meaning  that 
it  carries  and  disposes  of  both  sanitary  sewage  and  storm  water  which  mingle  in  the  same 
sewage  conduits.  Outlets  (or  storm  flows)  are  provided  at  various  places  within  the  sewerage 
system,  many  of  which  empty  into  tidal  waters,  to  relieve  the  system  of  surcharging  during  periods 
of  heavy  rainfaU.  The  terminals  of  these  outlets  are  generally  lower  than  water  level  at  high 
tide.  Thus,  self  operating  tide  gates  are  provided  within  the  overflows  to  prevent  the  intrusion 
of  seawater  into  the  system. 


48  P.D.   12 

have  therefore  asked  for  my  opinion  as  to  whether  the  order  of  the 
Director  of  the  Division  of  Water  Pollution  Control,-  for  the  abate- 
ment of  water  pollution  resulting  from  the  defective  nature  of  the  afore- 
said tide  gates,  should  be  directed  to  the  City  of  Boston  or  to  the 
Metropolitan  District  Commission. 

I  note  at  the  outset  that  under  G.  L.  c.  21,  §  45  the  Director  of  the 
Division  of  Water  Pollution  Control  is  without  power  to  issue  any  order, 
directing  the  discontinuance  of  the  discharge  of  sewage  into  the  waters 
of  the  Commonwealth,  unless  a  public  hearing  is  first  held.  However,  I 
assume  that  my  opinion  as  to  the  responsibility  for  rehabilitation  of  the 
above  tide  gates  will  result  in  appropriate  voluntary  action  by  the  re- 
sponsible party,  and  obviate  any  necessity  for  a  formal  order. 

After  careful  consideration,  I  am  of  the  opinion  that  responsibility 
for  the  rehabilitation  of  the  aforesaid  tide  gates  rests  with  the  Metropolitan 
District  Commission. 

Under  St.  1945,  c.  705,  the  Metropolitan  District  Water  Supply  Com- 
mission (established  under  St.  1926,  c.  375)  began  the  construction  of  a 
group  of  projects,  including  a  sewage  treatment  plant  at  Nut  Island  in 
the  City  of  Quincy  and  preliminary  work  for  the  construction  of  a 
sewage  treatment  plant  at  Deer  Island,  to  be  transferred  to  the  Metro- 
politan District  Commission  upon  completion  (St.  1945,  c.  705,  §  2, 
last  paragraph). 

These  projects,  and  other  sewerage  projects  authorized  and  directed 
by  this  statute,  were  the  first  step  in  a  program  designed  to  abate  pollu- 
tion from  sewage  in  Boston  Harbor  and  its  tributaries. 

At  this  time,  most  of  the  sewage  in  the  Boston  Metropolitan  area  was 
being  pumped  untreated  into  Boston  Harbor;  at  Nut  Island  from  areas 
within  the  South  Metropolitan  Sewerage  District,  at  Deer  Island  from 
areas  within  the  North  Metropolitan  Sewerage  District  and  at  Moon 
Island  from  areas  of  the  City  of  Boston  (together  with  certain  areas  of 
the  Town  of  Milton  and  the  City  of  Quincy),  not  included  within  either 
the  North  or  South  Metropolitan  Sewerage  Districts,  served  by  the 
Boston  Main  Drainage  System. 

By  St.  1947,  c.  583,  the  Metropolitan  District  Water  Supply  Commis- 
sion was  abolished,  and  its  duties,  functions  and  properties  were  trans- 
ferred to  the  Metropolitan  District  Commission. 

St.  1945,  c.  705  has  authorized,  for  the  projects  referred  to  therein, 
an  expenditure  of  $  15,000,000. 

By  St.  1949,  c.  606,  §  1,  an  additional  $25,000,000  was  authorized 
to  be  expended  by  the  Metropolitan  District  Commission  for  carrying 
out  the  projects  referred  to  in  St.  1945,  c.  705,  and  for  construction  of 
the  Deer  Island  sewage  treatment  plant  the  preliminary  work  for  which 
had  been  authorized  under  St.  1945,  c.  705. 

By  St.  1949,  c.  598,  the  City  of  Boston  was  authorized  to  construct, 
between  April  1,  1950  and  July  1,  1955,  a  sewage  treatment  plant  at 
Calf  Pasture  Point  in  the  Dorchester  section  of  Boston,  for  the  treat- 

2Establishcd  by  St.  1966,  c.  685,  §  1,  G.  L.  c.  21,  §  26,  as  a  division  of  the  Department  of 
Natural   Resources  and  subject  to  the  control  of  the  Water   Resources   Commission.    G.   L.  c.  21, 


P.D.   12  49 

ment  and  disposal  of  sewage  from  the  Boston  Main  Drainage  System. 
This  statute  was  repealed  by  section  9  of  St.  1951,  c.  645,  which  is 
entitled  AN  ACT  MAKING  THE  BOSTON  MAIN  DRAINAGE  SYS- 
TEM A  PART  OF  THE  SOUTH  METROPOLITAN  SEWERAGE 
SYSTEM  AND  FURTHER  PROVIDING  FOR  THE  SEWAGE  DIS- 
POSAL NEEDS  OF  THE  NORTH  AND  SOUTH  METROPOLITAN 
SEWERAGE  DISTRICTS  AND  COMMUNITIES  WHICH  HEREAF- 
TER MAY  BE  INCLUDED  IN  SAID  DISTRICTS. 

By  section  1  of  this  Act,  the  territory  exclusively  served  by  the  main 
drainage  system  of  the  city  of  Boston^  was  added  to  and  made  a  part  of 
the  South  Metropolitan  Sewerage  District,  as  then  defined  in  G.  L. 
c.  92,  §  1.^ 

Section  2  of  this  Act  provides  in  pertinent  part  as  follows: 

Section  2.  Subject  to  the  conditions  hereinafter  provided, 
the  commission  is  hereby  authorized  and  directed,  on  behalf 
of  the  Commonwealth,  to  carry  out,  in  addition  to  the  projects 
referred  to  in  chapter  seven  hundred  and  five  of  the  acts  of 
nineteen  hundred  and  forty-five,  in  chapter  five  hundred  and 
eighty-three  of  the  acts  of  nineteen  hundred  and  forty-seven, 
and  in  chapter  six  hundred  and  six  of  the  acts  of  nineteen  hun- 
dred and  forty-nine,  and  acts  in  addition  thereto  and  in  amend- 
ment thereof,  prior  to  July  first,  nineteen  hundred  and  fifty- 
eight,''  the  following  projects:  —  Project  A.  The  construc- 
tion of  a  tunnel  between  Columbia  Circle  and  Deer  Island  with 
necessary  shafts  and  appurtenant  works.  Project  B.  The 
construction  of  a  tunnel  between  Ward  Street  pumping  station 
and  Columbia  Circle  with  necessary  shafts  and  appurtenant 
works.  Project  C.  The  enlargement  of  the  previously  author- 
ized Deer  Island  sewage  treatment  plant  to  care  for  the  flow 
from  Project  A.  Project  D.  The  construction  of  a  rehef 
sewer  between  Boston  University  bridge  and  Ward  Street. 
Project  E.  The  construction  of  a  relief  sewer  for  the  west 
side  and  Stony  Brook  interceptors  of  the  Boston  main  drain- 
age district.  Project  F.  The  construction  of  a  Marginal 
Conduit  pumping  station  and  appurtenant  works.  Project  G. 
The  rehabilitation  of  tide  gates  and  pumping  stations.  In  con- 
structing said  projects  A,  B,  C,  D,  E  and  F  the  commission 
shall  provide  for  the  receipt  by  the  south  metropolitan  sewer- 
age system  of  the  sewage  of  the  main  drainage  system  of  the  city 
of  Boston  at  such  place  or  places  as  the  commission,  after  con- 
sultation with  the  commissioner  of  public  works  of  said  city, 
shall  determine  to  be  most  practicable.     The  commission  shall 

SThis   area   included   Boston   Proper,    South   Boston,    and    parts   of   Roxbury,   West    Roxbury   and 

Dorchester,  together  with  the  Squantum  section  of  the  city  of  Quincy  and  a  part  of  the  Town  of 

Milton.     The  remaining  areas  of  Boston  had  already  been  being  served  by  either  the  North  or 

South  Metropolitan  Sewerage  Districts. 

4St.    1959,   c.   612,    §   2   inserted   a   new   section    1    in   G.   L.   c.   92,   which    combined    the    North 

and  South  Metropolitan  Sewerage  Districts  into  one  Metropolitan  Sewerage  District. 

5The  time  within  which  the  above  sewerage  projects  must  be   completed  has  from   time  to  time 

been  extended  by  the  legislature,  the  presently  effective  deadline  being  July   1,   1971,   as  provided 

by  St.  1968,  c.  540,  §  1. 


50  P.D.   12 

also  make  all  connections,   and  construct  intercepting  sewers 
necessary  to  enable  the  city  of  Quincy  to  drain  the  territory 
in  the  Squantum  section  of  said  city  now  connected  to  the 
Boston   main   drainage    system   into    the    metropohtan    sewer- 
age system  (emphasis  supplied). 
For   carrying   out   the   projects   referred   to   in   section   2   and   those 
enumerated  in  St.  1945,  c.  705  and  St.  1949,  c.  606,  section  6  of  this 
act  authorized  an  expenditure  of  $25,000,000  in  addition  to   the  un- 
committed and  unexpended  balance  of  the  previously  authorized  amounts.^ 
Project  5  of  section  1  of  St.  1945,  c.  705  has  yet  to  be  completed, 
and  projects  F  and  G  of  section  2  of  St.   1951,  c.  645,  and  the  work 
authorized  by  the  last  sentence  of  the  aforequoted  portion  of  that  sec- 
tion, have  yet  to  be  commenced. 

As  of  this  date,  all  but  $2,447,862.69  of  the  amounts  authorized 
have  been  expended  or  encumbered,  and  it  appears  that,  in  addition  to 
that  amount,  a  further  amount  in  excess  of  $3,000,000  will  be  needed 
for  the  completion  of  these  projects,  not  considering  the  aforesaid 
project  G. 

The  question  here  is  whether  the  Legislature,  by  duecting  in  section 
2  of  St.  1951,  c.  645  that  the  Metropohtan  District  Commission  carry 
out,  as  part  of  Project  G  there  referred  to,  the  rehabilitation  of  tide  gates, 
intended  the  rehabilitation  of  only  those  tide  gates  appurtenant  to  mam 
sewers  constructed  and  maintamed  by  the  Commission  under  G.  L.  c. 
92,  §  1,'^  or  whether  the  legislature  also  intended  the  rehabihtation  of 
tide  gates  appurtenant  to  local  sewers  (including  the  Boston  Main  Drain- 
age System)  which  are  connected  to  main  sewers  of  the  Metropolitan 
District  Commission  under  G.  L.  c.  92,  §  2^  and  St.  1951,  c.  645,  §  2. 
The  legislative  history  of  St.  1951,  c.  645,  shows  that  it  was  based  on  a 
recommendation  of  the  Metropolitan  District  Commission  (House  Doc. 
No.  78  of  1951)  which  (page  2)  refers  to  "Repair  of  tide  gates",  to- 
gether with  other  projects  which  later  appear  in  section  2  of  St.  1951, 
c.  645,  without  specifying  what  tide  gates  were  intended.  The  recom- 
mendation also  states  (page  1 )  that  "the  legislation  herewith  presented 
modifies  existing  legislation  [St.  1949,  c.  598,  supra]  in  that  it  provides 
for  the  disposal  of  the  sewage  of  the  city  of  Boston  now  discharged  into 
Boston  Harbor  at  Moon  Island,  and  will  save  a  considerable  sum  of 
money  to  the  city  of  Boston  as  it  will  not  have  to  construct  its  own 
sewage  disposal  works  or  operate  such  works  as  originally  contem- 
plated." The  proposed  legislation  submitted  with  this  recommendation. 
House  Doc.  No.  75,  of  1951,  did  not  detail  any  particular  projects.     It 

GThe  legislature  has  subsequently  authorized  the  expenditure  of  additional  amounts  for  carrying 
out  these  projects;  St.  1961,  c.  515,  §  1  ($25,000,000),  St.  1962,  c.  658,  s.  1  ($5,000,000).  St.  1962, 
c.  766,  s.  1  ($10,000,000),  St.  1966,  c.  563,  §  1  ($6,500,000)  and  St.  1967,  c.  837,  §  1  ($8,000,000). 
7G.  L.  c.  92,  §  1  provides,  in  pertinent  part,  that  the  Commission  "shall  construct,  maintain  and 
operate  such  main  sewers  and  other  works  as  shall  be  required  for  a  system  of  sewage  disposal 
for"  the  various  municipalities  within  the  metropolitan  sewerage  system.  At  the  time  of  the 
passage  of  St.  1951,  c.  645,  there  were  (and  still  are)  16  tide  gates,  contained  in  6  outlets,  appur- 
tenant to  Metropolitan  District  Commission  main  sewers. 

8G.  L.  c.  92,  §  2  provides,  in  pertinent  part,  that  "Any  town,  within  the  limits  of  which  any 
main  sewer  under  the  control  of  the  Commission  is  situated,  shall  connect  its  local  sewers  with 
such  main  sewers  .  .  .  subject  to  the  direction,   control   and   regulation  of  the  Commission  .  .  ." 


P.D.  12  51 

merely  authorized  (section  2)  agreements  between  the  Metropolitan 
District  Commission  and  the  City  of  Boston  "for  the  purpose  of  re- 
ceiving and  disposing  of  the  sewage  of  said  city  not  now  received  and 
disposed  of  through  the  North  and  South  Metropohtan  Sewerage  Dis- 
tricts," and  provided  that  (section  3),  in  accordance  with  any  such 
agreement,  the  Commission  "shall  construct  the  necessary  sewerage  and 
sewage  treatment  works  for  the  reception  and  disposal  of  the  sewage 
from  the  said  city  ..."  The  House  Ways  and  Means  Committee  re- 
ported (House  Doc.  2730  of  1951)  that  this  bill  ought  to  pass  in  the 
form  of  a  new  draft,  the  present  St.  1951,  c.  645. 

What  appears  to  have  been  the  basis  for  St.  1951,  c.  645,  is  a  report 
made  on  February  9,  1951  by  Charles  A.  Maguire  and  Associates,  en- 
gineers, under  a  contract  of  July  19,  1950  with  the  Metropolitan  District 
Commission.  Basically,  this  report  recommended  the  joint  disposal  of 
sewage  from  the  Boston  Main  Drainage  District  with  that  of  the  Metro- 
politan Sewerage  District,  and  suggested  the  location  and  design  of  con- 
struction projects,  which  ultimately  appeared  in  St.  1951,  c.  645,  §  2, 
so  as  to  most  easily  facilitate  such  joint  disposal  (characterized  by  the 
report  as  its  "Joint  Plan"). 

Table  18  of  the  report,  which  is  a  list  of  the  contemplated  projects 
together  with  their  estimated  initial  costs,  contains  the  item  "Rehabilitation 
of  tide  gates  and  pumping  stations."  This  item  allocates  a  total  of 
$800,000  for  the  rehabilitation  of  pumping  stations,  which  are  there 
identified  as  two  stations  maintained  and  operated  by  the  Commission. 
The  tide  gates,  for  which  an  allocation  of  $200,000  is  made,  are  not 
there  identified. 

However,  on  pages  37  and  38  of  the  report  may  be  found  a  general 
discussion  of  "sewer  overflows  on  the  Boston  Main  Drainage  System 
and  the  North  and  South  Metropolitan  Sewerage  Systems"  which  goes 
on  to  state  that  "many  of  these  overflows  are  such  as  will  permit  the 
entrance  of  tide  water,  and  it  is  for  this  reason  and  for  the  reason  that 
all  unnecessary  overflow  of  sewage  should  be  prevented  that  we  have 
included  in  our  estimates  of  costs  of  work  to  be  carried  out  under  the 
Joint  Plan,  an  item  for  the  rehabilitation  of  gates  and  other  works  relating 
to  the  overflows."  Further,  at  page  92  of  this  report,  appears  the  asser- 
tion that  under  the  proposed  Joint  Plan,  "All  existing  storm  overflows 
and  tide  gates  in  the  various  systems  will  be  repaired  in  order  to  ehminate 
backflow  from  the  harbor  and  its  tributaries  into  the  sewerage  systems." 
(emphasis  supplied). 

As  early  as  1937,  the  problem  of  leakage  of  salt  water  into  the  Boston 
Main  Drainage  System  through  defective  tide  gates  was  brought  to  the 
attention  of  the  legislature  by  House  Doc.  No.  1600  of  that  year  (RE- 
PORT OF  THE  SPECIAL  COMMISSION  ON  THE  INVESTIGA- 
TION OF  THE  DISCHARGE  OF  SEWAGE  INTO  BOSTON  HAR- 
BOR AND  ITS  TRIBUTARIES),  fUed  pursuant  to  Chapter  42  of  the 
Resolves  of  1935  and  Chapters  5  and  36  of  the  Resolves  of  1936. 
Page  69  of  that  report,  attributing  salt  water  in  the  system  to  (defective) 
tide  gates,  pointed  out  that  "it  is  important  that  this  leakage  be  reduced  to 
a  mmimum,  as  the  presence  of  large  amounts  of  salt  water  in  ithe  system 


52  P.D.   12 

must  reduce  the  capacity  of  the  system  for  carrying  sewage  or  storm 
water  and  increase  the  cost  of  operation  because  of  increased  pumpage." 

As  the  Boston  Main  Drainage  System  is  now  connected  to  and  a  part 
of  the  Metropolitan  Sewage  District  under  St.  1951,  c.  465,  the  above 
problems  obviously  result  also  in  a  decrease  in  capacity  of  main  sewers 
of  the  Commission  and  an  increase  in  the  cost  of  their  operation.  Also, 
because  the  mingling  of  salt  water  with  sewage  impedes  the  proper  opera- 
tion of  the  Deer  Island  sewage  treatment  plant,  substantial  amounts  of 
sewage  from  the  Boston  Main  Drainage  System  are  presently  required, 
during  periods  of  high  tide,  to  be  diverted  from  main  sewers  of  the 
Commission  and  discharged  untreated  into  Boston  Harbor  at  Moon 
Island,  contrary  to  the  obvious  purpose  of  St.  1951,  c.  645  as  evidenced 
by  the  recommendations  contained  in  House  Doc.  78  of  1951,  supra. 

It  cannot  be  said  that  the  legislature  did  not  have  such  problems  in 
mind  when  drafting  St.  1951,  c.  645.  In  providing  for  the  construction 
of  the  Deer  Island  Plant,  and  for  its  enlargement  to  accommodate  sewage 
received  from  the  Boston  Main  Drainage  System  (Project  C,  of  section 
2  of  St.  1951,  c.  465),  the  Legislature  cannot  be  presumed  to  have 
overlooked  the  problems  with  the  operation  of  that  plant  which  would 
result  from  salt  water  leakage  into  the  Boston  Main  Drainage  System.  It 
"must  be  presumed  to  have  been  familiar  with  the  situation."  (See  Flan- 
agan V.  Lowell  Housing  Authority,  Mass.  Adv.  Sh.  (1969)  787,  790) 
which  would  exist  if  such  conditions  were  not  corrected,  and  their 
correction  could  not  have  been  accomplished  merely  by  a  rehabilitation 
of  tides  gates  appurtenant  to  main  sev/ers  of  the  Commission. 

I  therefore  conclude  that  Project  G  of  section  2  of  St.  1951,  c.  645, 
was  intended  to  include  those  tide  gates  appurtenant  to  the  Boston  Main 
Drainage  System. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  9  September  12,  1969 

MR.  DERMOT  P.  SHEA,  Executive  Secretary 
Consumers'  Council 

Dear  Sir: 

You  have  asked  my  opinion  whether  the  recently  enacted  legislation 
regulating  credit  bureaus  (St.  1969,  c.  442)  applies  to  the  credit  re- 
porting activities  of  commercial  banks.  Specifically,  you  have  asked 
whether  such  banks  fall  within  the  statutory  term  "credit  bureau,"  de- 
fined as:  "any  person  who  engages  in  the  business  of  making  credit 
reports." 

M.  G.  L.  A.  Chapter  4,  Section  6,  provides:  "Words  and  phrases 
shall  be  construed  according  to  the  common  and  approved  usage  of  the 
language  ..."  This  directive  has  been  further  clarified  by  standards 
of  construction  adopted  by  the  Supreme  Judicial  Court.  For  example, 
where  the  meaning  of  a  statute  is  plain,  the  Court  will  not  go  outside  the 
words  of  the  statute  to  examine  legislative  history  or  intent.     Allen  v. 


P.D.  12  53 

Commissioner  of  Corporations  and  Taxation,  272  Mass.  502,  508 
(1930);  Town  of  Milton  v.  Metropolitan  District  Commission,  342  Mass. 
222,  223  (1961).  On  the  other  hand,  where  statutory  language  is  con- 
fusing or  ambiguous,  the  Court  will,  if  necessary,  go  beyond  the  statute 
itself  to  examine  the  circumstances  surrounding  its  enactment,  including 
its  legislative  history.  Commonwealth  v.  Welosky,  276  Mass.  398,  401- 
402  (1931);  Tilton  v.  Haverhill,  311  Mass.  572,  577  (1942);  Leonard 
V.  School  Committee  of  Attleboro,  349  Mass.  704,  706  (1965). 

It  is  not  precisely  clear  from  the  language  of  G.  L.,  c.  93,  §  44,  as 
inserted  by  St.  1969,  c.  442,  whether  commercial  banks  were  intended 
to  be  encompassed  by  the  term  "credit  bureau."  A  "credit  bureau"  is 
"any  person  who  engages  in  the  business  of  making  credit  reports."  But 
a  "credit  grantor,"  the  next  definition  in  the  statute,  is  "any  person  en- 
gaged in  whole  or  in  part  in  the  business  of  extending  .  .  .  credit  ..." 
(emphasis  supplied).  Applying  the  principles  of  construction  that  no 
words  of  a  statute  shall  be  rejected  as  surplusage,  and  that  a  statute 
should  be  construed  as  a  whole  so  as  to  effect  a  consistent  and  uniform 
expression  of  the  legislative  intent  {Bolster  v.  Commissioner  of  Cor- 
porations and  Taxation,  319  Mass.  81,  84-85  (1946)  ),  it  appears  that 
the  definition  of  "credit  grantor"  was  carefully  drawn  to  include  every 
person  engaged  to  any  degree  whatsoever  in  the  business  of  extending 
credit,  and  that  the  definition  of  "credit  bureau,"  which  omits  such 
qualifying  words,  was  not  intended  to  encompass  all  persons  engaged  to 
any  degree  whatsoever  in  the  business  of  making  credit  reports. 

To  determine  the  intended  scope  of  the  definition  of  "credit  bureau," 
it  is  thus  necessary  to  resort  to  circumstances  surrounding  the  enactment 
of  the  statute,  including  its  legislative  history.  Committee  reports  made 
on  the  proposed  legislation  before  its  enactment  may  be  consulted  to 
help  resolve  ambiguities.  Hood  Rubber  Co.  v.  Commissioner  of  Cor- 
porations and  Taxation,  268  Mass.  355,  358  (1929);  City  of  New 
Bedford,  et  al  v.  New  Bedford,  Woods  Hole,  Martha's  Vineyard  and 
Nantucket  Steamship  Authority,  330  Mass.  422,  429-430  (1953). 

The  credit  bureau  legislation  was  based  largely  on  a  study  and  special 
report  on  local  credit  bureaus  made  by  the  Consumers'  Council  (House 
No.  2700),  the  study  and  report  having  been  authorized  by  Chapter  26 
of  the  Resolves  of  1968.  The  final  statute  was  in  substantial  part  a  ver- 
batim enactment  of  a  draft  of  legislation  proposed  in  the  Report.  The 
definitions  of  "credit  bureau"  and  "credit  grantor"  were  identical.  No- 
where in  the  Consumers'  Council  Report  was  any  reference  made  to  the 
credit  reporting  activities  of  commercial  banks.  In  fact,  pursuant  to  the 
authority  for  making  this  study  (Resolves  of  1968,  Chapter  26)  the 
Council  was  only  "authorized  and  directed  to  make  an  investigation  and 
study  relative  to  the  procedures  used  by  local  credit  bureaus."  And  the 
Report  itself  states,  at  page  11:  "For  the  purpose  of  this  study  the 
Council  has  concentrated  on  the  most  commonly  used  credit  reporting 
agency,  the  local  credit  bureau,  as  it  concerns  and  affects  the  over- 
whelming majority  of  the  citizens  of  the  Commonwealth."  Examples 
are  then  given  of  bureaus  such  as  the  Credit  Bureau  of  Greater  Boston, 
Inc.,  the  Credit  Bureau  of  Greater  Worcester,  etc. 


54  P.D.  12 

For  the  foregoing  reasons  I  therefore  conclude  that  Section  44  of 
Chapter  93  was  not  intended  to  apply  to  the  credit  reporting  activities  of 
commercial  banks. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.   10  September  23,  1969 

HONORABLE  EDWARD  J.  RIBBS,  Commissioner 
Department  of  Public  Works 

Dear  Commissioner: 

You  have  requested  my  opinion  as  to  the  legality  of  using  the  fol- 
lowing clause  in  the  Department's  Contract  Special  Provisions  for  future 
projects: 

"All  structural  steel,  regardless  of  its  source,  wiU  be  fab- 
ricated in  the  United  States." 

In  this  regard  G.  L.  c.  7,  §  22,  cl.  17  permits  the  Commissioner  of 
Administration  to  adopt  rules  and  regulations  to  establish 

"[a]  preference  in  the  purchase  of  supplies  and  materials, 
other  considerations  being  equal,  in  favor,  first,  of  supplies 
and  materials  manufactured  and  sold  within  the  Commonwealth, 
with  a  proviso  that  the  state  purchasing  agent  may,  where  prac- 
'  ticable,  allow  a  further  preference  in  favor  of  such  suppHes 
and  materials  manufactured  and  sold  in  those  cities  and  towns 
within  the  Commonwealth  in  which  the  ratio  of  unemployment 
to  the  total  labor  force,  as  determined  by  the  division  of  em- 
ployment 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." 

Pursuant  to  this  section,  the  Executive  Office  for  Administration  and 
Finance  has  adopted  Rule  1 6  which  states : 

"The  Purchasing  Agent's  Division  shall  give  preference  in 
the  purchase  of  supplies  and  materials,  other  considerations 
being  equal,  in  favor,  first  of  supplies  and  materials  manufac- 
tured and  sold  within  the  Commonwealth,  and,  second,  of  sup- 
pHes and  materials  manufactured  and  sold  elsewhere  within 
the  United  States." 

In  this  regard  G.  L.  c.  7  §  23 A  provides  in  part  as  follows: 

"Applicability  of  approved  rules,  etc.  Rules,  regulations  and 
orders  adopted  under  clause  (17)  of  section  twenty-two  shall, 
so  far  as  may  be  approved  by  the  governor  and  council,  apply 
to  the  purchase  by  contractors  of  supplies  and  materials  in 
the  execution  of  any  contract  to  which  the  Commonwealth 
is  a  party  for  the  construction,  reconstruction  or  repair  of  any 
public  work;  and  there  shall  be  inserted  in  any  such  contract 
a  stipulation  to  such  effect." 


P.D.  12  55 

In  accordance  with  this  latter  section,  a  provision  has  been  inserted  in 
the  Standard  Specifications  for  Highways,  Bridges  and  Waterways  re- 
ferring to  the  statute  and  rule  and  stating  that  a  preference  in  the  pur- 
chase of  supplies  and  materials,  other  considerations  being  equal,  shall 
be  given  to  supplies  and  materials  manufactured  and  sold  first  within  the 
Commonwealth  and  secondly  within  the  United  States. 

The  statute  and  rule  clearly  create  a  preference  in  favor  of  domestically- 
fabricated  steel  in  the  event  that  other  considerations  are  equal  but  does 
not  preclude  the  use  of  foreign-fabricated  steel  if  permitting  the  use 
of  such  steel  would  be  more  beneficial  to  the  Commonwealth. 

The  question  of  whether  other  considerations  are  equal,  is  a  question 
of  fact  to  be  determined  by  the  Commissioners  on  the  basis  of  all  the 
factors  involved  in  performance  of  the  contracts.  Once  it  is  determined 
that  considerations  are  equal  or  favor  the  use  of  domestic  products,  the 
Department  is  required  to  give  a  preference  to  domestic  products. 

In  your  letter  you  have  set  forth  some  of  the  factors  upon  which  you 
relied  in  arriving  at  your  determination  to  use  domestically-fabricated 
steel,  such  as,  quality  control  and  the  cost  and  ease  of  inspection.  You 
have  also  set  forth  an  actual  fact  situation  which,  I  assume,  is  typical  of 
your  experience  in  administering  this  statute. 

The  department  has,  in  effect,  made  an  administrative  determination 
that  other  considerations  are  at  least  equal  and  that  domestically-fabri- 
cated steel  should  be  given  a  preference. 

Since  you  have  made  an  administrative  determination  that  the  use 
of  domestically-fabricated  steel  would  be  more  beneficial  than  the  use  of 
foreign-fabricated  steel,  and  since  this  determination  is  based  upon 
relevant  criteria  as  well  as  the  Department's  knowledge  and  experience 
in  administering  the  contracts  with  the  Commonwealth,  I  am  of  the 
opinion  that  the  use  of  the  aforesaid  provision  in  the  Contract  Special 
Provision  is  a  permissible  form  of  granting  a  preference  under  G.  L.  c.  7, 
§  22,  cl.  17. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.   11  Octobers,  1969 

HONORABLE  SAMUEL  M.  FLAKSMAN 
Executive  Secretary 
Executive  Council 

Dear  Sir: 

By  a  letter  dated  October  2,  1969,  you  transmitted  a  copy  of  a  vote  of 
the  Executive  Council,  taken  October  1,  1969,  which  requests  my  opinion 
whether  Michael  E.  Haynes,  a  member  of  the  1969-1970  Legislature,  can 
be  appointed  by  the  Governor  of  the  Commonwealth  to  the  office  of 
"Member  of  the  Parole  Board  of  Massachusetts"  pursuant  to  G.  L.  c.  27, 
§  4.  The  question  has  been  raised  because  of  the  enactment  of  c.  766, 
Acts  of  1969. 


56  P.D.   12 

As  you  have  correctly  indicated  in  your  letter,  the  answer  to  your 
question  is  governed  by  two  statutory  provisions  and  Article  65  of  the 
Articles  of  Amendment  to  the  Constitution  of  the  Commonwealth. 
Article  65,  in  pertinent  part,  provides  that  "[n]o  person  elected  to  the 
general  court  shall  during  the  term  for  which  he  was  elected  be  appointed 
to  any  office  ...  the  emoluments  whereof  are  increased  during  such 
term  ..."  Section  42  of  c.  766  of  the  Acts  of  1969  amends  G.  L.  c. 
27,  §  4,  so  as  to  increase  the  salary  of  "Members  of  the  Parole  Board  of 
Massachusetts,"  and  §  47a  of  that  chapter  provides  that  anyone  appoint- 
ed as  a  "Member  of  the  Parole  Board"  between  the  effective  date  of  c. 
766  and  January  6,  1971,  shall  receive  the  salary  payable  under  G.  L.  c. 
27,  §  4  prior  to  the  enactment  of  c.  766. 

Article  65  of  the  Articles  of  Amendment  to  the  Constitution  prohibits 
the  appointment  of  any  member  of  the  Legislature  to  an  office  the 
salary  of  which  has  been  increased  during  the  member's  term  of  office. 
Chapter  766  of  the  Acts  of  1969  was  enacted  during  Mr.  Haynes'  term 
as  a  member  of  the  House  of  Representatives,  and  it  increased  the  salaries 
of  members  of  the  Parole  Board.  However,  a  reading  of  §  47a  of  c.  766 
evidences  a  clearly  expressed  legislative  intent  that  the  increase  in  salary 
apply  only  to  members  of  the  Parole  Board  serving  or  appointed  prior 
to  the  effective  date  of  the  chapter.  The  salary  for  any  member  appointed 
after  that  date,  but  prior  to  January  6,  1971,  remains  at  the  salary 
prescribed  by  G.  L.  c.  27,  §  4,  as  it  formerly  read. 

Should  Representative  Haynes  be  appointed  by  the  Governor  as  a 
member  of  the  Parole  Board,  and  such  appointment  is  made  prior  to  Jan- 
uary 6,  1971,  Mr.  Haynes  would  receive  as  salary  that  prescribed  by 
the  former  version  of  G.  L.  c.  27,  §  4.  The  appointment  would  not, 
therefore,  be  to  an  office  "the  emoluments  whereof  [were]  ...  in- 
creased" during  Mr.  Haynes'  term  as  a  legislator.  The  appointment,  if  it 
is  made,  would  not  be  prohibited  by  the  provisions  of  Article  65  of  the 
Articles  of  Amendment  to  the  Constitution. 

The  appointment  considered  by  the  Justices  in  Opinion  of  the  Justices, 
348  Mass.  803,  is  distinguishable  on  the  facts.  There  the  Justices  were 
asked  for  an  advisory  opinion  with  respect  to  an  appointment  of  John  J. 
McGlynn  to  the  office  of  Registrar  of  Motor  Vehicles,  the  salary  for 
which  position  had  been  increased  during  the  term  for  which  Mr. 
McGlynn  had  been  elected  to  the  Legislature.  Following  Mr.  McGlynn's 
appointment,  the  Governor  and  Council  reduced  the  salary  to  the  level 
obtained  prior  to  the  increase.  The  Justice  stated  that  "[t]he  fact  that 
the  Governor  and  Council  one  week  later  .  .  .  sought  to  reduce  the  sal- 
ary ...  is  without  significance."  Id.,  at  805.  In  the  instant  case,  the 
salary  for  the  position  to  which  Mr.  Haynes  may  be  appointed  has 
never  been  increased. 

In  conclusion,  then,  it  is  my  opinion  that  the  appointment  of  Repre- 
sentative Michael  Haynes  to  the  office  of  member  of  the  Parole  Board 
is  not  prohibited  by  Article  65  of  the  Articles  of  Amendment  to  the 
Constitution. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 


P.D.  12  57 

No.  12  October  21,  1969 

HONORABLE  NEIL  V.  SULLIVAN 
Commissioner  of  Education 
Department  of  Education 

Dear  Commissioner  Sullivan: 

You  have  requested  my  opinion  as  to  the  constitutionality  of  a 
practice  involving  Bible  reading  and  prayer  conducted  in  an  elementary 
school  in  the  Town  of  Leyden  pursuant  to  a  motion  voted  by  members 
of  the  Leyden  School  Committee.  For  reasons  that  will  appear  evident, 
it  is  my  opinion  that  such  a  practice  is  unconstitutional  under  the  First 
Amendment  of  the  United  States  Constitution. 

In  your  letter  you  refer  to  a  motion  passed  by  members  of  the  Leyden 
School  Committee  on  August  21,  1969,  which  states: 

"On  each  school  day,  before  class  instruction  begins,  a 
period  of  not  more  than  five  minutes  shall  be  available  to  those 
teachers  and  students  who  may  wish  to  participate  voluntarily 
in  the  free  exercise  of  religion  as  guaranteed  by  our  United 
States  Constitution. 

"This  freedom  of  religion  shall  not  be  expressed  in  any  way 
that  will  interfere  with  another's  rights. 

"Participation  may  be  total  or  partial,  regular  or  occasional, 
or  not  at  all. 

"Nonparticipation  shall  not  be  considered  evidence  of  non- 
religion  nor  shall  participation  be  considered  evidence  of 
recognizing  an  establishment  of  religion. 

"The  purpose  of  this  motion  is  not  to  favor  one  religion 
over  another  nor  to  favor  religion  over  non-religion,  but  rather 
to  promote  love  of  neighbor,  brotherhood,  respect  for  the  dig- 
nity of  the  individual,  moral  consciousness  and  civic  respon- 
sibility; to  contribute  to  the  general  welfare  of  the  community 
and  to  preserve  the  values  that  constitute  our  American  heri- 
tage." 

According  to  the  information  you  provide,  this  motion  is  implemented 
at  the  Leyden  Elementary  School  in  the  following  manner.  At  8:35  a.m., 
a  school  bell  rings  to  indicate  that  it  is  time  for  the  pupils  to  gather  for 
prayer.  At  8:40  a.m.,  another  bell  rings  signaling  the  commencement  of 
the  exercise.  At  this  time  different  practices  occur  in  grades  one  through 
six.  Either  the  Bible  is  read  by  the  teacher  or  by  a  volunteer  chosen  by 
the  teacher,  or  else  the  Lord's  Prayer  is  recited  under  the  teacher's  super- 
vision. Students  have  been  advised  that  they  may  participate  or  not 
in  these  exercises.  Immediately  following  this  five-minute  period,  another 
school  bell  rings  at  8:45  a.m.  and  the  "regular"  school  day  begins  with 
a  flag  salute,  a  patriotic  song,  and  silent  meditation. 

You  have  asked  whether  this  practice  is  constitutional.  Although  one 
of  my  predecessors  has  ruled  unconstitutional  a  program  factually  indis- 
tinguishable from  the  Leyden  practice  (see  Op.  Atty.  Gen.,  August  30, 


58  P.D.  12 

1963,  88-89),  your  question  merits  an  independent  evaluation  because  the 
prior  opinion  I  have  referred  to  was  based  on  a  hypothetical  question. 

The  First  Amendment  of  the  United  States  Constitution  declares  that 
"Congress  shall  make  no  law  respecting  an  establishment  of  religion  ..." 
The  Supreme  Court  has  held  that  this  principle  is  a  "fundamental  con- 
cept of  liberty"  which  also  binds  the  States  through  the  Fourteenth 
Amendment,  Cantwell  v.  Connecticut,  310  U.  S.  206,  303,  and  thus  has 
applied  the  Establishment  Clause  in  several  cases  concerning  state  public 
school  systems. 

Of  particular  relevance  are  the  companion  cases  of  Abington  School 
District  v.  Schempp  and  Murray  v.  Curlett,  374  U.  S.  203,  which  per- 
tained to  prayer  and  Bible  reading.  In  Schempp,  a  state  statute  required 
the  reading  of  at  least  ten  verses  from  the  Bible,  without  comment,  at 
the  opening  of  each  school  day  and  provided  that  any  child  could  be 
excused  from  attendance  or  participation  upon  the  written  request  of 
parent  or  guardian.  In  Murray,  a  rule  of  the  local  board  of  school  com- 
missioners pursuant  to  state  statute  required  the  reading,  without  com- 
ment, of  a  chapter  from  the  Bible  and/or  the  recitation  of  the  Lord's 
prayer.  In  this  case  children  were  also  excused  upon  the  written  re- 
quest of  parent  or  guardian.  In  both  cases,  it  was  clear  to  the  Court 
that  the  programs  were  religious  exercises  required  by  the  states  in  vio- 
lation of  the  command  of  the  First  Amendment  that  government  maintain 
strict  neutrality,  neither  aiding  nor  opposing  religion.  The  conclusion 
reached  in  this  case  has  since  been  confirmed  by  the  Supreme  Judicial 
Court  of  Massachusetts.  Attorney  General  v.  School  Committee  of  North 
Brookfield,  347  Mass.  775;  Waite  v.  School  Committee  of  Newton, 
348  Mass.  767. 

The  singular  importance  of  Schempp  and  Murray  derives  from  a  rule 
formulated  by  the  Court  to  distinguish  between  forbidden  involvements 
of  the  state  with  religion  and  those  contacts  permitted  by  the  Estab- 
lishment Clause. 

"The  test  may  be  stated  as  follows;  what  are  the  purpose 
and  the  primary  effect  of  the  enactment?  If  either  is  the  ad- 
vancement or  inhibition  of  religion  then  the  enactment  exceeds 
the  scope  of  legislative  power  as  circumscribed  by  the  Con- 
stitution. That  is  to  say  that  to  withstand  the  structures  of  the 
Establishment  Clause  there  must  be  a  secular  legislative  purpose 
and  a  primary  effect  that  neither  advances  nor  inhibits  re- 
ligion."/^., at  222. 

Based  on  prior  decisions,  this  guiding  rule  has  been  reaffirmed  in 
more  recent  cases.  Board  of  Education  v.  Allen,  392  U.  S.  236,  243; 
Epperson  v.  Arkansas,  393  U.  S.  97,  106-107.  Accordingly,  it  is  my 
duty  to  advise  you  in  the  light  of  the  Schempp  rule,  irrespective  of  my 
own  views  and  predelictions. 

The  school  committee's  motion  must  have  a  secular  purpose  and  a  pri- 
mary effect  that  neither  advances  nor  inhibits  religion  in  order  to  with- 
stand the  Establishment  Clause  under  the  Schempp  rule. 

The  motion  authorizes  and  establishes  a  period  for  "the  free  exercise  of 
religion."     Since  it  clearly  contemplates  that  religious  exercises  will  in 


P.D.  12  59 

fact  take  place,  it  is  impossible  to  avoid  the  conclusion  that  its  pur- 
pose is  "the  advancement  ...  of  religion."  Nor  does  the  motion's  later 
recitation  of  a  number  of  concededly  beneficial  secular  purposes  affect 
this  conclusion.  In  Chamberlin  v.  Dade  County  Board  of  Public  In- 
struction, 160  So.  2d  97  (Fla.  1964),  the  state  court  upheld  a  statute 
requiring  daily  reading,  without  comment,  from  the  Bible  in  the  pres- 
ence of  pupils  because  its  preamble  indicated  that  it  was  m  the  in- 
terest of  good  moral  training  and  of  a  life  of  honorable  thought  and  good 
citizenship  that  public  school  children  have  lessons  of  morality  brought 
to  their  attention.  The  Supreme  Court  summarily  reversed,  merely 
citing  Schempp.  Chamberlin  v.  Dade  County  Board  of  Public  Instruc- 
tion, 2)11  U.  S.  402.  In  the  Murray  case,  the  state  contended  that  the 
purposes  of  a  similar  statute  were  the  promotion  of  moral  values,  the 
contradiction  to  the  materiahstic  trends  of  our  times,  the  perpetuation  of 
our  institutions  and  the  teaching  of  literature.  In  rejecting  this  argu- 
ment, the  Court  noted  that  the  Bible  had  been  used  neither  as  an  instru- 
ment for  nonreligious  moral  inspiration  nor  as  a  reference  for  the 
teaching  of  secular  subjects.  Abington  School  District  v.  Schempp,  supra 
at  224. 

There  can  also  be  no  doubt  that  the  practices  in  Leyden  are  primarily 
religious  in  nature  and  advance  religion.  In  Engel,  the  non-denominational 
Regents'  prayer  was  held  to  be  "a  religious  activity  ...  a  solem  avowal 
of  divine  faith  and  supplication  for  the  blessings  of  the  Ahnighty,"  Engel 
v.  Vitale,  supra  at  425,  "whose  nature  and  meaning  were  quite  clearly 
religious  ..."  Abington  School  District  v.  Schempp,  supra  at  264  (con- 
curring opinion).  The  same  must  be  said  for  the  Lord's  Prayer.  In 
Schempp,  Bible  reading  was  seen  to  be  "a  rehgious  ceremony,"  and  it 
was  noted  that  "the  place  of  the  Bible  as  an  instrument  of  religion  can- 
not be  gainsaid  ..."  Id.  at  223,  224.  In  one  respect,  at  least,  the 
Leyden  program  goes  beyond  Engel  and  Schempp,  for  in  those  cases 
the  teachers  were  confined  to  written  text  and  were  not  permitted  by 
statute  or  rule  to  give  any  answers,  comments,  explanations  or  interpre- 
tations.   The  school  committee's  motion  contains  no  such  restriction. 

While  superficially  dissimilar,  the  Leyden  practices  bear  a  strong 
resemblance  to  McCollum  v.  Board  of  Education,  333  U.S.  203,  which 
held  unconstitutional  a  "released  time"  program  in  which  pupils  whose 
parents  consented  were  released  temporarily  from  their  regular  school 
classes  to  attend  classes  of  religious  instruction  conducted  on  school 
premises  by  religious  instructors  who  were  employed  at  no  expense  to 
the  state.  The  Court  found  beyond  all  question  that  there  was  a  utiliza- 
tion of  the  tax-established  and  tax-supported  school  system  to  aid 
religious  groups  in  spreading  their  faith.  School  buildings  were  used  for 
the  dissemination  of  religious  doctrines  and  the  state's  compulsory  public 
school  machinery  helped  to  provide  pupils  for  religious  classes.  Their 
decision,  the  Court  noted  in  a  later  case,  resulted  from  the  fact  that  the 
program  "would  involve  the  State  in  using  tax-supported  property  for 
religious  purposes  ..."  Epperson  v.  Arkansas,  supra  at  106.  This  same 
objection  clearly  applies  to  the  Leyden  program. 

In  reaching  the  conclusion  that  the  purpose  and  primary  effect  of  the 
school  committee's  motion  is  the  advancement  of  religion,  I  am  required 


60  P.D.  12 

under  criteria  established  by  the  Supreme  Court  to  say  that  the  following 
considerations  legally  cannot  be  controlling.  The  fact  that  the  program 
may  be  nondenommational  and  voluntary  in  nature  does  not  free  it 
from  the  limitations  of  the  Establishment  Clause.  Abington  School  Dis- 
trict V.  Schempp,  supra  at  224-225;  Engel  v.  Vitale,  370  U.S.  421,  430. 
That  the  program  takes  place  "before  class  instruction  begins"  is  also  of 
no  weight,  smce  the  practices  held  invalid  in  both  Engel  and  Schempp 
were  also  conducted  before  regular  classes  began.  Nor  can  it  be  argued 
that  the  prohibilation  of  such  a  practice  would  collide  with  the  majority's 
right  to  the  free  exercise  of  religion,  for  this  right  has  never  meant  that 
a  majority  could  use  the  machinery  of  the  state  to  practice  its  beliefs. 
Abington  School  District  v.  Schempp,  supra,  at  225-226.  Moreover,  it 
would  be  no  defense  to  urge  that  the  practice  may  be  a  relatively  minor 
encroachment  on  the  First  Amendment,  if  in  fact  an  encroachment  does 
take  place.   Id.  at  225. 

This  opinion,  however,  and  the  decisions  that  I  have  referred  to  in 
no  way  affect  the  observance  of  a  period  of  silent  meditation  as  con- 
ducted in  Leyden  and  in  other  schools  throughout  the  Commonwealth 
pursuant  to  G.  L.  c.  71,  §  lA.  This  practice  appears  to  satisfy  fully 
the  Constitution's  mandate  of  neutrality.  Abington  School  District  v. 
Schempp,  supra  at  281  (concurring  opmion).  Op.  Atty.  Gen.,  April  4, 
1966,  at  299-303.  Nor  is  the  use  of  the  Bible  or  other  religious  tracts 
completely  forbidden  in  public  schools  by  the  EstabUshment  Clause.  It 
is  the  rehgious  exercise,  not  the  religious  text,  that  is  prohibited.  The 
Bible,  of  course,  has  great  literary  and  historical  value  in  addition  to 
its  religious  significance.   The  Supreme  Court  has  noted: 

"...  it  might  well  be  said  that  one's  education  is  not  complete 
without  a  study  of  comparative  religion  or  the  history  of  religion 
and  its  relationship  to  the  advancement  of  civilization.  It  cer- 
tainly may  be  said  that  the  Bible  is  worthy  of  study  for  its 
literary  and  historic  quahties.  Nothing  we  have  said  here 
indicates  that  such  study  of  the  Bible  or  of  religion,  when  pre- 
sented objectively  as  part  of  a  secular  program  of  education, 
may  not  be  effected  consistently  with  the  First  Amendment." 
Abington  School  District  v.  Schempp,  supra  at  225. 

Either  of  these  practices,  however,  is  a  far  cry  from  authorizing  by 
official  act  publicly  paid  teachers  to  hold  or  assist  in  holding  religious 
exercises  in  a  public  school.  As  our  late  President  John  F.  Kennedy 
stated: 

"...  The  Supreme  Court  has  made  its  judgment  and  a  good 
many  people  obviously  will  disagree  with  it.  Others  will  agree 
with  it.  But  I  think  that  it  is  important  for  us  if  we  are  going 
to  maintain  our  constitutional  principle  that  we  support  the 
Supreme  Court  decisions  even  when  we  may  not  agree  with 
them. 

"In  addition,  we  have  in  this  case  a  very  easy  remedy  and 
that  is  to  pray  ourselves.  And  I  would  think  that  it  would  be 
a  welcome  reminder  to  every  American  family  that  we  can  pray 
a  good  deal  more  at  home,  we  can  attend  our  churches  with  a 
good  deal  more  fidelity,  and  we  can  make  the  true  meaning  of 


P.D.   12  61 

prayer  much  more  important  in  the  lives  of  all  of  our  children. 
That  power  is  very  much  open  to  us.  And  I  would  hope  that 
as  a  result  of  this  decision  that  all  American  parents  will  inten- 
sify their  efforts  at  home,  and  the  rest  of  us  will  support  the 
Constitution  and  the  responsibihty  of  the  Supreme  Court  in 
interpreting  it,  which  is  theirs,  and  given  to  them  by  the  Con- 
stitution." 

Public  Papers  of  the  Presidents,  John  F.  Kennedy,  1962,  pp. 
510-511. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.   13  October  27,  1969 

HONORABLE  ROBERT  Q.  CRANE 

Chairman,  State  Board  of  Retirement 

Dear  Mr.  Chairman: 

You  have  requested  my  opinion  whether  c.  601  of  the  Acts  of  1968 
imposes  any  obUgation  on  cities  and  towns  which  have  not  accepted  the 
provisions  of  G.  L.  c.  32,  §§  56  to  59,  the  so-called  "Veterans'  Retirement 
Act."  Those  sections  establish  special  retirement  provisions  for  veterans, 
separate  and  distinct  from  the  provisions  applicable  to  members  of  the 
Stale  Employees'  Retirement  System.  For  example,  G.  L.  c.  32,  §  58 
provides  in  pertinent  part: 

"A  veteran  who  has  been  in  the  service  of  the  common- 
wealth, 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  request,  with  the  approval  of  the  retirmg  authority, 
be  retired  from  active  service  at  seventy-two  percent  of  the  high- 
est annual  compensation  ..." 
General  Laws  c.  32,   §  60  provides  that  sections  56  to  59  shall  only 
"be  in  effect  in  any  county,  city,  town  or  district  which  accepted  them 
or  accepted  corresponding  provisions  of  law  ..." 

Chapter  601  of  the  Acts  of  1968,  now  found  in  G.  L.  c.  32,  §  59A, 
provides  as  follows: 

"If  a  retired  veteran  or  the  widow  of  a  veteran  receives  a 
pension  from  the  commonwealth  or  from  a  political  subdivision 
thereof  under  the  provisions  of  section  fifty-six,  fifty-seven, 
fifty-eight  or  fifty-eight  B,  and  if  a  portion  of  such  pension 
or  widow's  allowance  is  based  on  the  creditable  service  of  such 
veteran  in  a  governmental  unit  other  than  the  unit  which  pays 
such  pension  or  allowance,  the  governmental  unit  making  such 
payment  shall  be  reimbursed  in  full  by  such  other  governmental 
unit  for  such  portion  of  the  pension  or  allowance  as  shall  be 
computed  by  the  actuary  in  the  division  of  insurance.  The 
treasurer  of  the  governmental  unit  paying  such  pension  or  allow- 
ance shall  annually,  on  or  before  January  fifteenth,  upon  certi- 
fication of  the  retiring  authority  of  such   governmental   unit, 


62  P.D.  12 

notify  the  treasurer  of  such  other  governmental  unit  of  the 
amount  of  reimbursement  due  therefrom  for  the  previous  cal- 
endar year,  and  the  treasurer  of  such  governmental  unit  shall 
forthwith  take  such  steps  as  may  be  necessary  to  insure  prompt 
payment  of  such  amount.  AU  such  payments  from  the  other 
governmental  unit  shall  be  charged  to  such  funds  as  shall  be 
appropriated  for  payment  of  pensions  and  allowances  under 
section  fifty-six,  fifty-seven,  fQty-eight  or  fifty-eight  B,  and 
when  received  they  shall  be  credited  to  and  added  without  fur- 
ther appropriation  to  such  similar  appropriation  as  shall  have 
been  made  for  the  payment  of  similar  pensions  and  allowances 
in  the  paying  governmental  unit.  In  default  of  any  such  pay- 
ment, the  paying  governmental  unit  may  maintain  an  action 
of  contract  to  recover  the  same." 
You  state  in  your  letter  that: 

"1).  The  treasurers  of  some  cities  and  towns  question  the 
obligations  of  their  poUtical  subdivisions  to  pay  their  share  of 
the  pension  or  allowance  as  they  claim  their  cities  and  towns 
have  never  accepted  the  so-called  Veterans  Law,  (Sec.  56-60 
of  Chapter  32)  and  hence  have  never  made  appropriations 
for  such  purpose. 

"2).    The  city  and  town  treasurers  question  their  obligation 
to  pay  a  share  of  the  pension  or  allowance  in  cases  where  the 
retiree  was  a  teacher  and  part  of  his  service  took  place  while 
a  member  of  the  Teachers'  Retirement  System,  and  durmg  that 
time  his  retirement  deductions  were  deposited  in  the  Teachers' 
Retirement  System  and  were  not  at  the  disposal  of  the  local 
political  subdivision." 
It  is  clear  from  a  reading  of  G.  L.  c.  32,  §  60  that  cities  and  towns 
which  have  not  accepted  the  provisions  of  G.  L.  c.  32,  §§  56-59  have  no 
obligation  to  pay  pensions  pursuant  to  those  sections  to  veterans  who 
retire  as  employees  of  those  cities  and  towns.    Chapter  601  of  the  Acts 
of  1968  (G.  L.  c.  32,  §  59A),  however,  imposes  an  obligation  on  the 
Commonwealth  and  all  political  subdivisions  thereof  which  is  not  con- 
ditioned upon  an  acceptance  of  G.  L.  c.  32,  §§  56-59.   The  Act  provides 
that  if  a  portion  of  the  pension  "is  based  on  the  creditable  service  of 
such  veteran  in  a  governmental  unit  other  than  the  unit  which  pays  such 
pension"  then  the  "unit  making  such  payment  shall  be  reimbursed  in  full 
by  such  other  governmental  unit  for  such  portion  ..."    (Emphasis  sup- 
plied.)   The  Legislature  did  not  provide  that  reimbursement  would  occur 
only  if  the  other  governmental  unit  had  accepted  the  provisions  of  G.  L. 
c.  32,  §§  56-59.   In  addition,  I  note  that  G.  L.  c.  32,  §60,  by  its  terms, 
applies  only  to  G.  L.  c.  32,  §§  56-59,  and  not  to  §  59A.    Thus  any 
argument  that  §  60  restricts  the  imposition  of  any  obligation  only  to  those 
cities  and  towns  which  have  accepted  §§  56-59  appears  to  be  without 
merit. 

It  is  clear  that  the  Legislature  can  impose  new  obligations  on  cities, 
towns  and  other  political  subdivisions  without  their  consent  and  without 
reimbursement.  It  is  well  settled  that  a  city  or  town  of  the  Common- 
wealth 


P.D.  12  63 

"is  simply  a  political  subdivision  of  the  state,  and  exists  by 
virtue  of  the  exercise  of  the  power  of  the  state  through  its 
legislative  department."    City  of  Worcester  v.  Worcester  Con- 
solidated  Street   Railway   Company,    196    U.S.    539,    at   548 
(1905). 
See,  also,  Horrigan  v.  Mayor  of  Pittsfield,  298  Mass.  492,  at  499.    Given 
this  relationship  between  the  Commonwealth  and  its  political  subdivisions, 
it  is  certainly  within  the  power  of  the  Legislature  to  require  reimburse- 
ment from  all  of  the  Commonwealth's  political  subdivisions  and  not  just 
those  which  have  accepted  the  provisions  of  G.  L.  c.  32,  §§  56-59. 

There  appears  to  be  no  reason  why  the  same  reasoning  does  not 
obtain  with  respect  to  instances  where  retirees  were  teachers  and  their 
retirement  deductions  were  deposited  in  the  Teachers'  Retirement  System. 
Whether  or  not  the  deductions  were  "at  the  disposal  of  the  local  retire- 
ment system"  is,  in  my  opinion,  irrelevant  to  the  central  question  whether 
the  Legislature  has  imposed  an  obligation  of  reimbursement  in  such  cases. 
It  is  my  view  that  such  an  obligation  has  been  imposed  even  though  de- 
ductions were  not  at  the  disposal  of  the  political  subdivision  involved. 

In  considering  your  questions,  I  have  not  overlooked  that  provision 
in  c.  601  which  states  that  "[a]ll  such  payments  from  the  other  govern- 
mental unit  shall  be  charged  to  such  funds  as  shall  be  appropriated  for 
payment  of  pensions  and  allowances  under  section  fifty-six,  fifty-seven, 
fifty-eight  or  fifty-eight  B  .  .  .  "  This  provision  would  require  any 
political  subdivision  which  had  not  accepted  the  provisions  of  §§  56-59 
to  make  an  annual  appropriation  to  satisfy  any  obligation  imposed  by 
c.  601. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  14  October  31,  1969 

HONORABLE  HOWARD  M.  MILLER,  Chairman 
Alcoholic  Beverages  Control  Commission 

Dear  Sir: 

You  have  requested  an  opinion  as  to  the  applicability  of  an  opinion 
rendered  by  the  Attorney  General  to  the  Alcoholic  Beverages  Control 
Commission  (the  Commission)  on  December  4,  1959,  to  an  application 
now  pending  before  the  Commission  for  the  transfer  of  a  tavern  license 
to  premises  which  were  licensed  as  an  all-alcoholic  beverage  package 
store  for  the  year  1967,  although  there  is  no  license  in  effect  on  said 
premises  at  this  time.    The  premises  in  question  are  located  within  a 
500-foot  radius  of  a  school.    General  Laws  c.  138,  §  16C  provides: 
"Premises,  except  those  of  an  inn-holder  and  except  such 
parts  of  buildings  as  are  located  ten  or  more  floors  above  street 
level,  located  within  a  radius  of  five  hundred  feet  of  a  church 
or  school  shall  not  be  licensed  for  the  sale  of  alcoholic  bever- 
ages; but  this  provision  shall  not  apply  to  the  transfer  of  a 
license  from  premises  located  within  the  said  distance  to  other 


64 

premises  located  therein,  if  it  is  transferred  to  a  location  not 
less  remote  from  the  nearest  church  or  school  than  its  former 
location,  nor  shall  it  apply  to  the  licensing  of  premises  located 
within  a  radius  of  five  hundred  feet  of  a  church  if  the  govern- 
ing body  of  such  church  assents  in  v^'riting  to  such  licensing. 

"In  this  section  a  church  shall  mean  a  church  or  synagogue 
building  dedicated  to  divine  worship  and  in  regular  use  for 
that  purpose,  but  not  a  chapel  occupying  a  minor  portion  of  a 
buildmg  primarily  devoted  to  other  uses,  and  a  school  shall 
mean  an  elementary  or   secondary  school,  public  or  private, 
giving  not  less  than  the  minimum  instruction  and  traimng  re- 
quired by  chapter  seventy-one  to  children  of  compulsory  school 
age." 
Your  letter  asks  whether  the  application  before  the  Commission  may 
be  excepted  from  G.  L.  c.  138,  §  16C  by  §  2  of  c.  569  of  the  Acts  of 
1954  (etfective  January  1,  1956),  which  provides  as  follows: 

"The  provisions  of  section  sixteen  C  of  chapter  one  hundred 
and  thirty-eight  of  the  General  Laws,  inserted  by  section  one 
of  this  act,  shall  not  apply  to  premises  which,  prior  to  the 
effective  date  of  this  Act,  or  prior  to  the  establishment  of  a 
church  or  school  within  five  hundred  feet  thereof,  were  licensed 
for  the  sale  of  alcohohc  beverages." 
You  have  orally  informed   me   that   the  premises   in   question  were 
licensed  prior  to  January  1,  1956,  the  eflective  date  of  St.  1954,  c.  569. 
The  cited  1959  opinion  of  the  Attorney  General  was  that  an  exception 
was  available  under  St.  1954,  c.  569,  §  2,  where  the  premises  had  previ- 
ously been  hcensed  as  a  "package  goods"  store  for  the  sale  of  malt 
beverages  during  the  year  1935.    However,  subsequent  to  the  time  the 
1959  opinion  was  rendered,  it  was  argued  in  Vauglian  v.  Max's  Market, 
Inc.,  343  Mass.  394,  at  396-397,  that  St.  1954,  c.  569,  §  2  is  intended 
only  to  shield  from  the  operation  of  G.  L.  c.   138,   §   16C  the  renewal 
of  existing  hcenses  of  premises  located  within  500  feet  of  a  church  or 
school,  and  that  it  is  inapphcable  to  earher  expired  hcenses.    While  the 
Court  did  not  decide  that  issue  because  of  the  absence  of  a  necessary 
party,  there  was  dictum  that  a  narrower  interpretation  of  §  2  of  c.  569 
of  the  Acts  of  1954  than  was  expressed  in  the    1959  opinion  of  the 
Attorney  General  would  be  correct  or  even  necessary  on  constitutional 
grounds  of  equal  protection.    The  Court  also  noted  that  the  omission  to 
include  §  2  of  c.  569  of  the  Acts  of  1954  in  §  16C,  as  inserted  in  G.  L. 
c.  138,  suggests  an  intention  that  §  2  have  a  limited  application. 

It  is  my  opinion  that  the  dictum  in  Vaiighan  should  be  followed  in 
applying  St.  1954,  c.  569,  §  2,  and  that  said  §  2  was  intended  as  a 
"grandfather  clause"  to  exempt  premises  with  licenses  in  effect  at  the 
time  of  the  effective  date  of  St.  1954,  c.  569,  or  licenses  in  effect  at  the 
time  of  the  establishment  of  the  school  or  church  in  question.  Jaspar  v. 
Dolan,  Mass.  Adv.  Sh.  (1968)  1293,  decided  on  December  4,  1968, 
held  only  that  where  there  was  an  existing  license  on  the  premises  at 
the  time  of  application  for  a  different  type  of  license  for  the  same  prem- 
ises, St.  1954,  c.  569,  §  2  was  applicable.  That  decision  has  no  appli- 
cation to  the  facts  of  the  present  situation. 


P.D.  12  65 

For  the  reason  stated,  I  conclude  that  §  2  of  c.  569  of  the  Acts  of 
1954  does  not  apply  to  the  transfer  in  question. 

Very  truly  yours, 

ROBERT  H.  QUINN 
Attorney  General 

No.  15  November  18,  1969 

HONORABLE  MILTON  GREENBLATT,  M.D. 
Commissioner  of  Mental  Health 

Dear  Doctor  Greenblatt: 

You  have  requested  my  opmion  with  respect  to  the  effective  date  of 
certain  provisions  of  c.  889  of  the  Acts  of  1969,  "An  Act  Establishing 
a  Comprehensive  Drug  Rehabilitation  Program  and  Establishmg  Within 
the  Department  of  the  Attorney  General  a  Narcotic  and  Harmful  Drug 
Training  Program  for  State  and  Local  Pohce  Officers."  By  its  terms,  the 
Act  amends  or  repeals  portions  of  G.  L.  c.  lllA  and  c.  123,  which 
govern  the  commitment  of  drug  addicts,  and  provides  new  procedures 
for  commitment  and  treatment  of  addicts  and  drug  dependent  persons. 
While  the  new  procedures  are  to  take  eflect  on  January  1,  1971,  it 
appears  from  a  reading  of  c.  889  that  certain  of  the  amendments  and 
repeals  may  take  effect  on  November  27,  1969.  Section  25  of  c.  889 
provides: 

"This  act  shall  take  effect  conformably  to  law  except  that 
sections  one  hundred  and  thirty-two  to  one  hundred  and  thirty- 
seven,  inclusive,  and  section  one  hundred  and  thirty-nine,  and 
the  second,  fourth  and  fifth  paragraphs  of  section  one  hundred 
and  thirty-one  of  chapter  one  hundred  and  twenty-three  of  the 
General  Laws,  inserted  by  section  one  of  this  Act,  shall  take 
effect  on  January  first,  nineteen  hundred  and  seventy-one." 

You  state  in  your  letter  that  an  interpretation  that  the  new  commit- 
ment procedures  are  to  become  effective  on  January  1,  1971  and  that  the 
other  repealing  and  amendatory  provisions  are  to  become  effective  on 
November  27,  1969  would  result  in  "turmoil  and  confusion"  in  the 
commitment  and  treatment  of  drug  dependent  persons.  Such  an  intent, 
with  its  resulting  consequences,  cannot  in  my  opinion  be  attributed  to 
the  Legislature. 

It  is  clear  that  the  new  commitment  and  treatment  provisions  provided 
by  c.  889  of  the  Acts  of  1969  become  effective  on  January  1,  1971,  by 
the  express  terms  of  section  25  of  the  Act.  The  precise  issue  for  resolu- 
tion, then,  is  on  what  date  the  amending  and  repealing  provisions  of 
c.  889,  not  specifically  covered  by  the  January  1,  1971  reference,  are  to 
become  effective.  It  is  my  opinion  that  the  provisions  of  c.  889  which 
repeal  or  significantly  amend  existing  provisions  for  drug  rehabilitation 
were  intended  to  be  included  among  those  provisions  the  effectiveness  of 
which  is  postponed  until  January  1,  1971.  The  contrary  and,  in  my 
opinion,  untenable  interpretation  would  result  in  eliminating,  on  Novem- 
ber 27,  1969,  existing  provisions  for  drug  rehabilitation,  long  before  those 
provisions  would  be  replaced  by  new  procedures. 


66  P.D.  12 

In  Spaulding  v.  The  Inhabitants  of  Alford,  1  Pick,  33,  the  Supreme 
Judicial  Court  determined  that  there  was  "nothing  inconsistent  or  con- 
tradictory in  allowing"  the  provisions  of  a  repealed  Act  to  continue  until 
the  effective  date  of  a  new  Act,  where  both  Acts  regulated  the  practice  of 
medicine  and  the  Legislature  obviously  intended  that  the  old  provisions 
continue  until  the  new  provisions  became  effective.  In  State  v.  Kennedy, 
104  A.2d  632  (1954),  the  Court  of  Appeals  of  Maryland  cited  the 
Spaulding  case  with  approval  and  determined  that  the  provisions  of  a 
repealed  statute  remained  in  effect  until  re-enacted  provisions  could  be- 
come effective.  The  Court  stated: 

"If  the  change  in  the  instant  case  is  to  be  applied  prospec- 
tively, it  should  not  be  construed  as  a  repeal  of  the  previous 
requirements,  for  this  would  create  a  hiatus  and  break  the 
continuity  of  the  license  system  and  the  long  range  conserva- 
tion plan.  We  think  the  clear  intention,  drawn  from  the  intrinsic 
evidence  of  the  statute  itself,  is  that  the  old  requirements  should 
remain  until  the  new  ones  come  into  operation."  104  A. 2d 
at  635.   (Emphasis  supplied.) 

In  the  instant  situation,  as  in  the  Maryland  case,  tlie  "clear  intention"  is 
that  the  old  commitment  and  treatment  provisions  should  remain  in  effect 
until  the  new  provisions  become  effective. 

In  conclusion,  then,  it  is  my  opinion  that  those  portions  of  G.  L.  c. 
lllA  and  c.  123,  governing  the  commitment  and  treatment  of  addicts 
and  drug  dependent  persons,  which  were  amended  or  repealed  by  c.  889 
of  the  Acts  of  1969  and  which  provide  the  present  statutory  authority  for 
commitment  and  treatment  remam  in  effect  until  January  1,  1971. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  16  November  21,  1969 

HIS  EXCELLENCY  FRANCIS  W.  SARGENT 
Governor  of  the  Commonwealth  of  Massachusetts 

Dear  Governor  Sargent: 

You  have  requested  my  opinion  whether  a  member  of  the  General 
Court  may  be  reappointed  by  you  as  a  member  of  the  Public  Health 
Council  established  under  G.  L.  c.  17,  §  3.  You  have  indicated  that  the 
legislator  in  question  was  not  a  member  of  the  General  Court  when  he 
was  originally  appointed  to  the  Public  Health  Council. 

A  review  of  the  constitutional  and  statutory  provisions  applicable  to 
the  facts  presented  by  your  request  reveals  no  impediment  to  such  an 
appointment.  Article  65  of  the  Articles  of  Amendment  to  the  Constitu- 
tion of  the  Commonwealth  is  not  applicable,  since  the  position  to  which 
the  legislator  is  to  be  reappointed  was  not  created,  nor  were  the  emolu- 
ments thereof  increased,  during  his  present  term  in  the  General  Court. 

Part  2,  Chapter  6,  Article  2  of  the  Constitution  and  Article  8  of  the 
Amendments  to  the  Constitution  make  a  number  of  offices  expressly  in- 


P.D.   12  67 

compatible.  However,  neither  of  these  constitutional  provisions  prohibits 
a  member  of  the  General  Court  from  serving  as  a  member  of  the  Public 
Health  Council. 

Nor  does  G.  L.  c.  30,  §  21,  which  forbids  a  person  from  receiving 
more  than  one  salary  from  the  Treasury  of  the  Commonwealth,  prevent 
the  appointment.  Although  the  legislator  receives  a  salary  from  the 
Treasurer  as  a  member  of  the  General  Court,  the  payment  of  $25  per 
day  while  in  conference  as  a  member  of  the  Public  Health  Council  con- 
sists of  wages  or  compensation  rather  than  salary.  In  this  connection 
the  factual  situation  here  is  similar  to  that  presented  in  1920  Op.  Atty. 
Gen.  699.  There  a  person  had  been  appointed  a  member  of  the  Advisory 
Board  of  the  Department  of  Agriculture  and  received  $10  per  day,  while 
in  conference,  plus  travel  expenses.  The  same  person  was  also  appointed 
Director  of  the  Division  of  Reclamation,  Soil  Survey  and  Fairs  in  the 
Department  of  Agriculture  at  a  salary  of  $4,000  per  year.  The  opinion 
of  the  Attorney  General  stated  that  "[salary]  is  limited  to  compensation 
established  on  an  annual  or  periodical  basis  and  paid  usually  in  install- 
ments, at  stated  intervals,  upon  the  stipulated  per  annum  compensation. 
It  differs  from  the  payment  of  a  wage  in  that  in  the  usual  case  wages  are 
established  upon  the  basis  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."  1920  Op.  Atty.  Gen. 
699,  700.  It  was  concluded  that  the  compensation  received  on  a  per  diem 
basis  as  a  member  of  the  advisory  board  was  a  wage  paid  him  for  the 
limited  time  in  which  he  was  engaged  on  this  special  work.  Cf.  1956 
Op.  Atty.  Gen.  42. 

I  assume,  for  the  purposes  of  this  opinion,  that  the  legislator's  service 
on  the  Public  Health  Council  will  not  be  such  as  to  interfere  with  his 
duties  as  a  member  of  the  General  Court  or  be  performed  at  the  same 
time  that  he  is  required  to  attend  to  his  duties  as  a  legislator.  1920  Op. 
Atty.  Gen.  699,  701. 

Although  offices  are  not  made  expressly  incompatible  by  any  constitu- 
tional or  statutory  provision,  they  "may  be  incompatible  at  common 
law  because  the  nature  of  their  duties  is  such  as  to  render  improper  the 
holding  of  both  offices  by  one  person.  Where  the  holder  of  one  office  is 
the  superior  of  the  holder  of  the  other  office,  or  has  discretionary  power 
to  review  the  action  of  the  other,  the  offices  are  incompatible."  Russell 
V.  County  of  Worcester,  323  Mass.  717,  719. 

In  the  Russell  case,  it  was  held  that  the  office  of  county  commissioner 
and  the  office  of  clerk  of  the  Fu'st  District  Court  of  Southern  Worcester 
were  incompatible,  and  that  when  the  clerk  was  elected  and  duly  qualified 
as  a  county  commisioner,  the  office  of  clerk  became  vacant.  The  decision 
was  based  on  the  points  of  contact  between  the  two  offices,  including  the 
fact  that  the  county  commissioners  controlled  the  expenses  of  the  clerk 
and  determined  the  town  in  which  his  office  was  to  be  located. 

The  legislator  in  this  instance  will  be  one  of  six  appointed  members 
on  the  Public  Health  Council  which,  together  with  the  Commissioner  of 
Public  Health,  comprises  the  Department  of  Public  Health.  The  duties 
of  the  Public  Health  Council  are  set  forth  in  G.  L.  c.  1 11,  §  3  and  include 
the  making  of  rules  and  regulations,  taking  evidence  on  appeals,  holdmg 


68  P.D.  12 

hearings  and  considering  plans  and  appointments  required  by  law.  How- 
ever, the  Council  has  no  administrative  or  executive  functions,  G.  L. 
c.  HI,  §  3.  In  addition,  the  Commissioner  must  submit  annually  to  the 
Council  recommendations  regarding  health  legislation,  G.  L.  c.  1 1 1,  §  2. 
As  a  member  of  the  General  Court,  the  legislator  has  no  supervisory 
power  relative  to  the  duties  which  he  performs  as  a  member  of  the 
Public  Health  Council  and  exercises  no  discretionary  power  to  review 
the  actions  of  the  same.  Therefore,  these  positions  are  not  incompatible 
at  common  law. 

Article  30  of  the  Declaration  of  Rights  of  the  Commonwealth,  which 
provides  in  part  that  "the  legislative  department  shall  never  exercise  the 
executive  and  judicial  powers  or  either  of  them"  does  not  preclude  the 
appointment  of  the  legislator  to  the  Public  Health  Council.  This  pro- 
vision is  intended  to  prohibit  the  legislature  as  a  body  from  exercising 
executive  or  judicial  duties  and  has  no  application  to  the  members  of 
the  General  Court,  1895  Op.  Any.  Gen.  233.  Thus,  the  legislator  as  an 
individual  member  of  the  General  Court  is  not  prevented  by  Article  30 
from  being  appointed  a  member  of  the  Public  Health  Council. 

In  conclusion,  it  is  my  opinion  that  the  reappointment  of  the  legislator 
as  a  member  of  the  Public  Health  Council  is  not  prohibited  by  any  pro- 
vision of  the  Constitution  or  statutes  of  the  Commonwealth. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  17  November  21,  1969 

HONORABLE  CLEO  F.  JAILLET 

Commissioner  of  Corporations  and  Taxation 

Dear  Commissioner  Jaillet: 

On  behalf  of  the  Director  of  Accounts  of  the  Department  of  Corpora- 
tions and  Taxation,  you  have  requested  my  opinion  with  respect  to 
several  questions  arising  from  the  enactment  of  Chapter  849  of  the  Acts 
of  1969,  "An  Act  to  Improve  the  Collection  of  Property  Taxes  Through 
Changes  in  the  Fiscal  Cycles  of  Counties,  Cities,  Towns  and  Certain 
Districts."  The  Act  is  a  lengthy  and  complex  piece  of  legisladon,  con- 
sisting of  seventy-nine  sections,  but  for  the  purposes  of  this  opinion  it 
is  sufficient  to  note  that  its  principal  purpose  is  to  change  the  fiscal  year 
of  counties,  cities,  towns  and  districts  from  a  calendar  year  basis  to  a 
July  1  —  June  30  basis. 

In  providing  for  the  change  in  the  fiscal  years  of  counties,  cities,  towns 
and  districts,  the  Legislature  of  necessity  had  to  provide  for  a  transition 
period  of  either  six  months  or  eighteen  months,  as  you  note  in  your 
letter.  The  Legislature  chose  the  eighteen-month  period,  and  in  the  first 
drafts  of  the  Acts  that  period  was  to  run  from  January  1,  1970  through 
June  30,  1971.  However,  you  inform  me  that  it  was  determined,  prior 
to  final  enactment,  that  the  eighteen-month  period  should  be  delayed  by 
one  year.  Thus,  the  eighteen-month  period  would  not  run  from  January 
1,  1970  but  from  January  1,   1977.    That  change  was  made  in  sections 


P.D.  12  69 

77  and  78  of  the  Act,  but  the  reference  to  the  eighteen-month  period  in 
section  76  of  the  Act  did  not  change. 

The  Act,  as  passed  by  the  House  and  Senate  and  signed  by  the 
Governor,  therefore  contains  incompatible  sections.  Section  76  refers 
to  a  transitional  period  of  eighteen  months  beginning  January  1,  1970 
and  ending  June  30,  1971,  whereas  sections  77  and  78  refer  to  a  trans- 
itional period  of  eighteen  months  beginning  January  1,  1971  and  ending 
June  30,  1972.  On  the  basis  of  that  incompatibility,  you  have  posed 
the  following  problems  for  resolution: 

"1.  Because  of  the  conflict  between  the  provisions  of  Sections 
76  and  77,  the  Director  is  uncertain  as  to  whether  he  should 
prescribe  and  furnish  blank  forms  to  the  county  commissioner 
of  the  several  counties,  excluding  Suffolk  and  Nantucket,  for 
the  preparation  during  the  current  year  budget  estimates,  as 
required  by  Sections  28  and  28A  of  Chapter  35,  Section  30 
of  Chapter  36,  Section  28  of  Chapter  74,  and  Section  44  of 
Chapter  128,  for  a  twelve  month  period  beginning  January  1, 
1970  or  for  an  eighteen  month  period  beginning  on  that  date. 
"2.  Because  of  the  conflict  between  the  provisions  of  Section 
76  and  Section  77,  the  Director  is  uncertain  as  to  whether  the 
forms  to  be  used  in  the  preparation  of  budget  estimates  by 
officers  of  our  cities,  other  than  Boston,  which  forms  he  is 
required  to  approve,  shall  be  set  up  for  a  twelve  month  period 
beginning  January  1,  1970  or  for  an  eighteen  month  period 
beginning  on  that  date. 

"3.  If  your  opinion  in  answer  to  Question  No.  2  is  that  the 
forms  should  be  prepared  for  a  twelve  month  period,  thereby 
providing  for  budget  estimates  for  twelve  months  rather  than 
eighteen  months,  should  budget  estimates  prepared  by  town  offi- 
cers, under  the  provisions  of  the  aforementioned  Section  59  of 
Chapter  41,  be  prepared  for  a  twelve  month  period  beginning 
on  January  1,  1970. 

"4.    If  your  opinion  in  answer  to  Question  No.  2  is  that  the 

forms  should  be  prepared  for  a  twelve  month  period,  thereby 

providing  for  budget  estimates  for  twelve  months  rather  than 

eighteen    months,    should    the    appropriations    provided    under 

Section  12B  of  Chapter  40  for  beach  districts  be  for  a  twelve 

month  period  beginning  on  January  1,  1970 

"5.    If  your  opinion  in  answer  to  Question  No.  2  is  that  the 

forms  should  be  prepared  for  a  twelve  month  period,  thereby 

providing  for  budget  estimates  for  twelve  months  rather  than 

eighteen  months,  shall  the  budget  estimates  and  the  assessments 

made  against  member  towns  under  the  provisions  of  Section  7 

and  18  of  Chapter  40B;  Section  16B  of  Chapter  71;  Section 

27  of  Chapter  111;  and  Section  11  of  Chapter  115  be  for  a 

twelve  month  period  beginning  on  January  1,  1970." 

In  my  opinion,  the  answers  to  your  questions  turn  primarily  on  an 

interpretation  of  section  76  of  the  Act,   and  that  provision  should  be 

considered  first.    It  is  my  opinion  that  section  76  was  intended  to  read 

that  "the  fiscal  year  of  every  county,  city,  town  and  district  which  begins 


70  P.D.  12 

on  January  first,  nineteen  hundred  and  seventy-one,  shall  consist  of  an 
eighteen-month  period  and  shall  not  end  with  the  following  December 
thirty-first  but  with  June  thirtieth,  nineteen  hundred  and  seventy-two. 
(Emphasis  supplied.)  The  failure  of  the  Legislature  to  change  the 
draft  of  the  Act  or  conform  to  the  language  quoted  above,  when  it  in 
fact  had  changed  other  comparable  provisions  so  to  read,  is  a  legislative 
mistake  which  is  subject  to  a  corrective  interpretation.  Blanchard  v. 
Sprague  3  F.Cas.  645  (No.  1517)  (C.C.D.  Mass.  1838).  In  Blanchard, 
Mr.  Justice  Story,  sitting  as  a  Circuit  Justice,  stated: 

"Now,  I  agree,  that,  in  construing  an  act  of  Congress,  if  there 
be  a  plain  mistake  apparent  upon  the  face  of  the  act,  which 
may  be  corrected  by  other  language  in  the  act  itself,  the  mis- 
take is  not  fatal."    IF  Cas.  at  646. 

"Other"  language  found  in  Chapter  849  of  the  Acts  of  1969  indicates 
without  exception,  that  the  eighteen-month  transitional  period  is  to 
commence  on  January  1,  1971.  Section  79,  by  its  express  terms,  provides 
that  sections  1  through  75  of  the  Act  "shall  take  effect  on  July  first, 
nineteen  hundred  and  seventy-one."  Section  77,  by  its  express  terms, 
provides  that  estimates  shall  be  for  an  "eighteen  month  period  begin- 
ning with  January  first,  nineteen  hundred  and  seventy-one  ..."  and 
section  78  provides  that  two  bills  shall  be  rendered  for  real  estate  and 
personal  property  taxes  "assessed  as  of  January  first,  nineteen  hundred 
and  seventy-one  ..." 

In  the  face  of  these  latter  provisions,  to  interpret  section  76  literally, 
as  taking  effect  on  January  1,  1970,  would  be  to  presume  that  the 
Legislature  intentionally  wrote  conflicting  provisions  into  the  Act,  or  that 
the  Legislature  intentionally  provided  for  classifications  and  distinctions 
which  have  no  rational  basis.  I  decline  to  make  such  a  presumption, 
especially  where  the  result,  as  here,  would  be  considerable  disruption 
and  confusion  in  the  administration  of  the  fiscal  affairs  of  counties,  cities, 
towns  and  districts. 

Having  determined,  therefore,  that  section  76  should  be  read  as 
providing  for  an  eighteen-month  transitional  period  commencing  Janu- 
ary 1,  1971,  it  is  my  opinion,  in  response  to  your  first  question  that  the 
Director  of  Accounts  should  furnish  blank  forms  to  the  county  com- 
missioners of  the  several  counties,  excluding  Suffolk  and  Nantucket,  as 
required  by  G.  L.  c.  35,  §§28  and  28A,  c.  36,  §  30,  c.  74,  §  28,  and 
c.  128,  §  44,  for  a  twelve-month  period  beginning  January  1,  1970. 

In  response  to  your  second  question,  it  is  my  opinion  that  the  forms 
to  be  used  in  the  preparation  of  budget  estimates  by  officers  of  cities  of 
the  Commonwealth,  other  than  the  City  of  Boston,  should  be  set  up  for 
a  twelve-month  period  beginning  on  January  1,   1970. 

In  response  to  your  questions  three,  four  and  five,  I  answer  each  in 
the  affirmative. 

Very  truly  yours, 

ROBERT  H.  QUINN 
Attorney  General 


P.D.  12  71 

No.  18  December  2,  1969 

HONORABLE  WILLIAM  POWERS 

Commissioner  of  Public  Safety 

Dear  Sir: 

By  a  letter  dated  September  12,  1969,  the  then  Actmg  Commissioner 
of  Public  Safety,  Walter  P.  Parker,  requested  my  opinion  with  respect 
to  the  provisions  of  §  7A  of  c.  271  of  the  General  Laws,  inserted  by 
c.  810  of  the  Acts  of  1969,  entitled  "An  Act  Authorizing  Certain 
Organizations  to  Conduct  Raffles  and  Bazaars."  Specifically,  the  follow- 
ing questions  have  been  posed: 

"Question  1.  The  said  Section  7 A  contains  the  following  defi- 
nition: 'Raffle,'  an  arrangement  for  raising  money  by  the  sale 
of  tickets,  certain  among  which,  as  determined  by  chance  after 
the  sale,  entitle  the  holders  to  prizes. 

A.  DOES  THE  ABOVE  DEFINITION  PERMIT  THE  SALE  OR 
POSSESSION  OF  SO-CALLED  'U.  S.  TREASURY  BAL- 
ANCE TICKETS'  BY  QUALIFIED  MEMBERS  OF  SPON- 
SORING ORGANIZATIONS  HAVING  A  PERMIT  ISSUED 
UNDER  THE  PROVISIONS  OF  THE  SAID  SECTION  7A, 
INASMUCH  AS  WINNING  TICKETS  ARE  NOT  DRAWN, 
BUT  ARE  DETERMINED  BY  CERTAIN  DIGITS  OF  THE 
U.  S.  TREASURY  BALANCE  WHICH  IS  PUBLISHED  IN 
DAILY  NEWSPAPERS? 

B.  DOES  THE  ABOVE  DEFINITION  PERMIT  THE  SALE  OR 
POSSESSION  OF  LOTTERY  TICKETS  CALLED  'LUCKY- 
SEVEN,'  'CLUB  VEGAS,'  'PLAY  POKER,'  OR  SIMILAR 
TICKETS  BY  QUALIFIED  MEMBERS  OF  SPONSORING 
ORGANIZATIONS  HAVING  A  PERMIT  ISSUED  UNDER 
THE  PROVISIONS  OF  THE  SAID  SECTION  7A,  SUCH 
SALE  OR  POSSESSION  BEING  ON  THE  PREMISES  OF 
SUCH  SPONSORING  ORGANIZATIONS? 

C.  DOES  THE  ABOVE  DEFINITION  PERMIT  THE  SALE  OR 
POSSESSION  OF  LOTTERY  TICKETS  CALLED  'LUCKY- 
SEVEN,'  'CLUB  VEGAS,'  'PLAY  POKER,'  OR  SIMILAR 
TICKETS  BY  QUALIFIED  MEMBERS  OF  SPONSORING 
ORGANIZATIONS  HAVING  A  PERMIT  ISSUED  UNDER 
THE  PROVISIONS  OF  THE  SAID  SECTION  7A,  SUCH 
SALE  OR  POSSESSION  BEING  OUTSIDE  THE  PREMISES 
OF  SUCH  SPONSORING  ORGANIZATIONS? 

"Question  2.  The  said  Section  7A  contains  the  following  defi- 
nition: 'Bazaar,'  a  place  maintained  by  the  sponsoring  organi- 
zation for  disposal  of  merchandise  awards  by  means  of  chance. 
A.  DOES  THE  ABOVE  DEFINITION  PROHIBIT  THE  DIS- 
POSAL OF  CASH  AWARDS  BY  MEANS  OF  CHANCE? 
"Question  3.  The  last  paragraph  appearing  in  the  said  Section 
7 A  provides  as  follows: —  No  person  who  prints  or  produces 
tickets,  cards  or  any  similar  article  used  in  the  conduct  of  a 
bazaar  or  raffle  pursuant  to  a  permit  issued  under  the  provisions 


72  P.D.  12 

of  this  section  shall  be  subject  to  any  penalty  therefor,  provided 
that  a  certified  copy  of  such  permit  was  presented  to  him  prior 
to  his  undertaking  to  print  or  produce  such  tickets  or  cards. 

A.  DOES  THIS  PROVISION  EXEMPT  SUCH  A  PERSON 
FROM  BEING  SUBJECT  TO  ANY  PENALTY  FOR  PRINT- 
ING OR  PRODUCING  ANY  OF  THE  TICKETS,  CARDS 
OR  SIMILAR  ARTICLES  OF  THE  TYPE  ENUMERATED 
IN  QUESTIONS  1-A,  1-B  and  1-C?" 

These  questions  will  be  answered  seriatim.  For  the  reasons  hereinafter 
stated,  I  answer  questions  1(A),  (B)  and  (C)  in  the  negative,  question 
2(A)  in  the  aflirmative,  and  question  3(A)  in  the  negative. 

Question  1(A)  asks  whether  the  absence  of  a  drawing  of  winning 
tickets  in  the  so-called  "Treasury  Balance"  game,  prevents  it  from  quali- 
fying as  a  raffle  as  that  term  is  defined  in  G.  L.  c.  271,  §  7A.  As  you 
note  in  your  question,  the  statutory  definition  of  raffle  is  "an  arrangement 
for  raising  money  by  the  sale  of  tickets,  certain  among  which,  as  deter- 
mined by  chance  after  the  sale,  entitle  the  holder  to  prizes." 

In  defining  "raffle,"  G.  L.  c.  271,  §  7 A  makes  no  mention  of  the 
necessity  for  a  drawing  but  states  only  that  winning  tickets  must  be 
"determined  by  chance,  after  the  sale"  of  the  tickets.  However,  §  7 A 
further  provides  that  any  organization  wishing  to  conduct  a  raffle  must 
first  apply  for  a  permit  from  the  clerk  of  the  city  or  town  in  which  the 
raffle  will  be  "drawn."  In  my  opinion,  this  provision  of  §  7 A  evidences 
a  clear  legislative  intent  that  the  determination  by  chance  to  be  made 
after  the  sale  of  the  tickets  must  be  made  by  a  drawing  of  the  winning 
ticket(s). 

It  is  a  fundamental  principle  of  statutory  construction  that  every  part 
of  a  legislative  enactment  will  be  given  force  and  eft'ect  and  no  part  treated 
as  immaterial  or  superfluous.  Bolster  v.  Commissioner  of  Corporations 
and  Taxation,  319  Mass.  81.  It  is  a  further  principle  that  the  several 
sections  of  a  statute  must  be  read  together  so  as  to  make  the  statute  a 
consistent  and  harmonious  whole.  Real  Properties,  Inc.  v.  Board  of 
Appeal  of  Boston,  311  Mass.  430. 

With  these  principles  in  mind,  it  is  my  opinion  that  G.  L.  c.  27 1 ,  §  7A 
requires,  as  an  element  of  the  definition  of  "raffle,"  the  "drawing"  of  the 
winning  tickets.  To  interpret  the  statute  in  the  opposite  fashion  would 
be  to  allow,  as  "raffles,"  certain  games  which  because  of  the  absence  of 
a  drawing  would  have  no  locus  in  which  to  be  licensed.  In  my  view,  the 
Legislature  intended  no  such  result  in  enacting  c.  810  of  the  Acts  of  1969. 

It  is  my  understanding  of  the  Treasury  Balance  game  that  winning 
tickets  are  selected  by  matching  numbers  on  the  tickets  with  certain 
numbers  of  the  United  States  Treasury  balance  as  it  is  published,^  Mon- 
day through  Friday,  in  daily  newspapers.  At  no  time  is  a  drawing  in- 
volved. As  such,  the  game  does  not  comply  with  the  requirements  of  a 
raffle  as  set  forth  in  c.  271,  §  7 A  and,  therefore,  in  response  to  question 
1(A),  it  is  my  opinion  that  the  game  is  not  permitted  by  the  statute. 

Question  1(B)  appears  to  ask  two  questions,  the  first  of  which  is 
whether  the  definition  of  "raffle"  in  G.  L.  c.  271,  §  7 A  permits  the  sale 
or  possession  of  the  lottery  tickets  called  "Lucky-Seven,"  "Club  Vegas," 


P.D.  12  73 

"Play  Poker,"  or  similar  tickets.  It  is  my  understanding  that  in  each  of 
these  games  winning  tickets  are  selected  at  the  time  the  game  cards  are 
printed  and  prior  to  the  sale  of  any  of  said  cards. 

A  person  purchasing  one  of  these  tickets,  by  comparing  the  slips  con- 
tained in  the  back  of  his  game  card  with  the  front  of  the  same  card, 
can  determine  whether  he  has  won  or  lost.  Here  again,  at  no  time  during 
the  proceeding  does  a  drawing  occur.  Therefore,  it  is  my  opinion  that 
the  aforementioned  games  do  not  qualify  as  raffles  pursuant  to  G.  L. 
c.  271,  §  7A,  and  that  §  7A  does  not  permit  the  sale  or  possession  of  the 
lottery  tickets  called  "Lucky-Seven,"  "Club  Vegas,"  "Play  Poker,"  or 
similar  tickets. 

The  second  half  of  Question  1(B)  inquires  if  the  definition  of  "raffle" 
in  G.  L.  c.  271,  §  7 A  permits  the  sale  or  possession  of  any  of  the  afore- 
mentioned or  similar  lottery  tickets  on  the  premises  of  the  sponsoring 
organization.  It  is  my  opinion  that  my  response  to  the  first  half  of 
Question  1(B)  is  dispositive  of  this  question,  and  that  such  sale  or  pos- 
session would  not  be  permitted. 

Question  1(C)  inquires  if  the  definition  of  "raffle"  in  G.  L.  c.  271, 
§  7A  permits  the  sale  or  possession  of  the  aforementioned  or  similar 
lottery  tickets  off  the  premises  of  the  qualified  sponsoring  organization. 
It  is  my  opinion  that  my  response  to  the  first  half  of  Question  1(B)  is 
also  dispositive  of  this  question,  and  that  such  sales  or  possession  would 
not  be  permitted. 

Question  2(A)  inquires  if  the  definition  of  "Bazaar"  in  G.  L.  c,  271, 
§  7A  permits  the  disposal  of  cash  awards  by  means  of  chance.  It  is  a 
fundamental  principle  of  statutory  construction  that  the  words  of  a 
statute  are  to  be  construed  according  to  their  natural  import  and  approved 
usage.  Johnson  v.  District  Attorney  for  the  Northern  Dist.,  342  Mass. 
212.  Another  such  principle  is  that  when  a  statute  is  clear  and  unambig- 
uous on  its  face,  the  express  mention  of  a  matter  in  that  statute  excludes 
by  implication  all  other  similar  matters  not  mentioned.  Op.  Atty.  Gen., 
Apr.  18,  1961,  p.  119;  Spence,  Bryson,  Inc.  v.  The  China  Products  Com- 
pany, 308  Mass.  81,  88;  Boston  and  Albany  Railroad  Company  &  another 
v.  Commonwealth,  296  Mass.  426,  434. 

The  natural  unport  of  the  express  reference  to  "merchandise  awards" 
in  G.  L.  c.  271,  §  7 A  is  that  the  statute  intends  that  only  merchandise 
awards  may  be  disposed  of  at  a  Bazaar.  The  omission  of  any  reference 
to  other  types  of  awards  evidences  a  clear  legislative  intent  to  prohibit 
all  other  forms  of  awards. 

Therefore,  in  response  to  question  2(A),  it  is  my  opinion  that  G.  L. 
c.  271,  §  7 A  does  not  permit  the  disposal  of  cash  awards  by  means  of 
chance  at  a  Bazaar.  In  answering  your  question,  I  intimate  no  opinion 
on  the  question  whether  G.  L.  c.  271,  §  7 A  permits  the  disposal  of  cash 
awards  at  a  raffle. 

Question  3(A)  inquires  if  the  final  paragraph  of  G.  L.  c.  271,  §  7 A, 
exempting  printers  of  tickets  used  in  the  conduct  of  a  raffle  or  a  Bazaar 
from  prosecution  when  the  raffle  or  bazaar  is  permitted,  exempts  printers 
of  "Treasury  Balance  Tickets"  and/or  the  lottery  tickets  called  "Lucky- 
Seven,"  "  Club  Vegas,"  "Play  Poker,"  or  similar  tickets.    In  view  of  my 


74  P.D.  12 

determination,  supra,  that  under  no  circumstances  does  the  sale  of  any 
of  the  aforementioned  lottery  tickets  qualify  as  a  raffle  under  G.  L.  c.  271, 
§  7A,  it  is  my  opinion  that  a  person  printing  such  tickets  is  not  exempt 
from  the  penalty  provided  for  such  printing. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  19  December  5, 1969 

HONORABLE  ARTHUR  W.  BROWNELL 

Commissioner  of  Natural  Resources 

Dear  Commissioner  Brownell: 

You  have  requested  my  opinion  v^ith  respect  to  several  questions 
arising  from  the  enactment  of  c.  715  of  the  Acts  of  1962,  entitled  "An 
Act  Relative  to  the  Promotion  and  Development  of  Marine  Fisheries  of 
the  Commonwealth."  The  Act,  as  you  note,  made  significant  changes 
in  the  administration  and  financing  of  marine  fisheries  activities  and  re- 
search in  the  Commonwealth.  The  Act  established  a  Marine  Fisheries 
Advisory  Commission,  consisting  of  nine  members,  to  be  appointed  by 
the  Governor,  and  section  8  of  the  Act  delegated  extensive  rule  making 
powers  to  the  Director  of  Marine  Fisheries  to  enable  him  to  act  upon 
proposals  of  the  Commission.  That  section,  which  is  now  found  in  G.  L. 
c.  130,  §  17A,  provides: 

"Upon  petition  signed  by  any  interested  party  or  upon  his 
own  motion,  the  director  shall  submit  to  the  marine  fisheries 
advisory  commission  proposals  relating  to  the  management  of 
the  marine  fisheries.  After  public  hearing,  notice  of  which  shall 
be  published  in  a  newspaper  of  general  distribution  in  the  areas 
affected,  the  commission  shall  in  writing  approve  or  disapprove 
such  proposals.  If  any  proposal  is  so  approved,  the  director 
shall  in  accordance  with  such  approval  adopt,  amend  or  repeal 
rules  and  regulations,  subject  to  the  approval  of  the  commis- 
sioner, which  shall  govern  the  following  activities  only: 

(1)  The  manner  of  taking  fish; 

(2)  The  legal  size  limits  of  fish  to  be  taken; 

(3 )  The  seasons  and  hours  during  which  fish  may  be  taken; 

(4)  The  numbers  or  quantities  of  fish  which  may  be  taken; 

(5)  The  opening  and  closing  of  areas  within  the  coastal  waters 
to  the  taking  of  any  and  all  types  of  fish;  provided  that  no 
area  shall  be  so  opened  or  closed  without  the  consent  of 
the  selectmen  of  the  town  or  the  mayor  and  council  of  the 
city  affected  thereby.  Upon  the  request  of  the  commission, 
the  selectmen  or  mayor  and  council  shall  hold  a  public 
hearing  upon  the  question  and  shall  thereafter  notify  the 
commission  in  writing  within  forty-five  days  after  such 
request  has  been  received  or  consent  will  be  deemed  to 
have  been  granted. 


P.D.  12  75 

"No  such  rule  or  regulation  shall  require  a  license  for  the 
taking  of  finned  fish  from  the  coastal  waters  for  non-commercial 
purposes." 

Section  9  of  the  Act  amended  G.  L.  c.  130  by  inserting  a  new  section 
104,  as  follows: 

"This  chapter  shall  not  be  deemed  to  affect  any  privileges 
granted  in  any  special  statute  relating  to  fisheries  in  any  partic- 
ular place,  except  such  provisions  thereof  as  relate  to  shellfish 
and  shellfisheries,  to  alewife  fisheries,  and  to  those  activities 
which  are  the  subject  of  rules  and  regulations  under  section 
seventeen  A." 
With  these  statutory  sections  in  mind,  you  have  posed  the  following 
questions  for  resolution: 

"1)  Does  the  rule-making  power  delegated  to  the  director 
of  marine  fisheries  by  G.  L.  c.  130,  sec.  17A,  construed  in  the 
light  of  G.  L.  c.  130,  sec.  104,  authorize  the  director  to  adopt 
and  enforce  regulations  which  conflict  with  and  thereby  super- 
cede previously  existmg  special  acts  of  the  legislature? 

"2)  Does  the  requirement  in  G.  L.  c.  130,  Sec.  17A  for 
local  consent  apply  to  subsection  (5),  or  does  it  also  apply  to 
subsection  (1)  through  (4)  as  well? 

"3)  Does  a  rule  or  regulation  which  permits,  in  a  defined 
area,  a  particular  mamier  of  fishing  (such  as  dragging)  when 
formerly  that  manner  of  fishing  was  prohibited  in  that  area 
(though  fish  could  be  taken  by  any  other  method)  constitute 
a  regulation  of  'the  manner  of  taking  fish,'  or  a  regulation 
'opening  .  .  .  areas  within  the  coastal  waters  to  the  taking  of 
any  and  all  types  of  fish  .  .  .  ,  '  within  the  meaning  of  G.  L. 
c.  130,  sec.  17A?" 
I  will  consider  your  questions  seriatim. 

In  considering  your  first  question,  it  is  necessary,  first  of  all,  to  con- 
sider a  problem  raised  by  any  legislation  relating  to  marine  fisheries. 
Historically,  this  industry  has  been  the  subject  of  many  special  Acts  of 
the  Legislature,  some  of  which,  as  you  state,  are  two  hundred  years  old. 
Often,  many  of  these  Acts  are  not  found  in  the  General  Laws  and  are  only 
uncovered  by  a  search  of  the  Acts  of  each  session  of  the  Legislature.  In 
many  instances,  the  original  provisions  has  lapsed. 

With  these  considerations  in  view,  the  Governor's  message  to  the 
Legislature  in  1962  proposed  a  legislative  program  (  a  portion  of  which 
is  embodied  in  c.  715  of  the  Acts  of  1962)  which  would  include,  inter 
alia,  "First,  a  creation  of  a  permanent  Marine  Fisheries  Advisory  Com- 
mission in  the  Department  of  Natural  Resources"  and  "Second,  the 
granting  of  administrative  control  to  that  agency  over  the  coastal  fisheries 
of  the  Commonwealth."  Governor's  Address  to  the  Legislature,  Sec.  1 
of  1962,  p.  12.    (Emphasis  supplied.) 

The  Governor's  message  was  premised,  in  part,  on  a  report  issued  by 
the  Massachusetts  Marine  Fisheries  Advisory  Commission  on  December 
1,  1960.  In  setting  forth  the  problems  which  confronted  the  marine 
fisheries  industry,  the  Commission  stated: 


76  P.D.  12 

"Many  of  the  existing  fishing  laws  are  outdated,  needlessly 
complicated,  and  in  many  cases  impractical.  In  some  instances 
the  laws  are  either  difficult  to  enforce,  or  the  violators  cannot 
readily  be  prosecuted.  Lack  of  flexibility  in  the  administrative 
powers  of  the  Department  of  Natural  Resources  serves  to 
magnify  this  problem,  in  that  regulations  can  be  altered  only 
by  legislative  action."  Final  Report  on  the  Studies  of  Massa- 
chusetts Marine  Fisheries  Problems  by  the  Marine  Fisheries 
Advisory  Commission,  Department  of  Natural  Resources,  De- 
cember 1,  1960,  p.  16.    (Emphasis  supplied.) 

The  report  went  on  to  detail  the  Commission's  recommendations  with 
respect  to  administrative  control  of  marine  fisheries: 

"Under  present  procedures,  virtually  any  changes  in  policies 
or  programs  affecting  the  marine  fisheries  must  be  accompanied 
by  individual  legislative  petition,  with  a  consequent  tendency 
to  accomplish  revision  by  competition  of  special  interests  rather 
than  scientific  and  technological  need. 


"It  is  therefore  a  strong  recommendation  of  the  Commission 
that  the  Director  of  Marine  Fisheries,  subject  to  the  approval 
of  the  Advisory  Commission,  the  Commissioner  of  Natural 
R.esources,  and  the  Board  of  Natural  Resources,  be  empowered 
to  have  full  administrative  control  of  the  marine  fisheries  over 
which  the  Commonwealth  now  has  jurisdiction,  and  that  these 
powers  extend  to  include,  where  necessary,  the  opening  or 
closing  of  areas  to  fishing,  the  licensing  of  all  parties  concerned 
with  the  marine  fisheries,  the  adoption  of  mesh  regulations  or 
size  limits,  and  the  revision  of  any  existing  fees  now  adminis- 
tered by  the  Director."    Id.  at  pp.  19-20. 

It  is  apparent  that  the  Legislature,  in  enacting  c.  715  of  the  Acts  of 
1962,  followed  the  recommendations  of  the  Governor  and  the  Advisory 
Commission  and  enacted  them  without  significant  change.  The  intent  of 
the  Legislature,  in  my  opinion,  was  that  there  be,  as  you  state  in  your 
letter,  "a  fresh  start  at  marine  fisheries  management"  and  not  "that  the 
rule-making  power  should  be  circumscribed  by  the  many  special  acts" 
passed  over  the  last  two  centuries.  It  is  my  opinion,  therefore,  that  the 
very  broad  rule-making  povv'er  delegated  to  the  director  by  the  terms  of 
G.  L.  c.  130,  §  17A,  construed  in  the  light  of  G.  L.  c.  130,  §  104,  does 
indeed  authorize  the  Director  of  Marine  Fisheries  to  adopt  and  enforce 
regulations  with  respect  to  those  subjects  specifically  enumerated  in  the 
former  section  which  conflict  with  and  thereby  supersede  previously  ex- 
isting special  acts. 

With  respect  to  your  second  question,  it  is  my  opinion  that  the  require- 
ment for  local  consent  applies  only  to  subsection  (5)  of  G.  L.  c.  130, 
§  17A,  and  not  to  subsections  (1)  through  (4).  The  requirement  is 
included  in  a  proviso  which  refers  to  the  specific  question  of  opening 
or  closing  areas  within  the  coastal  waters,  and  it  bears  no  relation  to 
the  other  four  subsections. 


P.D.  12  77 

With  respect  to  your  third  question,  it  is  my  opinion  that  a  regulation 
which  permits,  within  a  defined  area,  a  particular  manner  of  fishing  is  a 
regulation  pertaining  to  "the  manner  of  taking  fish"  and  not  to  "the 
opening  or  closing  of  areas  within  the  coastal  waters  to  the  taking  of 
any  and  all  types  of  fish."  A  regulation  pertaining  to  the  latter  category 
would  not  involve  a  particular  manner  of  fishing;  rather,  it  would  either 
open  or  close  an  area  to  all  types  of  fishing.  However,  I  note  that  it 
might  be  possible  to  effect  an  opening  or  closing  of  areas  within  the 
coastal  waters  to  the  taking  of  any  and  all  types  of  fish  through  the  pro- 
mulgation of  a  series  of  individual  regulations  governing  the  manner  of 
taking  fish.  The  Director  could  not,  in  my  opinion,  circumvent  the 
requirement  of  local  consent  by  such  an  exercise  of  his  rule-making 
authority.  Your  letter  does  not  indicate  that  any  such  course  is  contem- 
plated, and  I  assume  that  it  is  not. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  20  December  11,  1969 

HONORABLE  ROBERT  F.  OTT 

Commissioner  of  Public  Welfare 

Dear  Commissioner  Ott: 

You  have  requested  my  opinion  with  respect  to  certain  questions  arising 
from  the  enactment  of  c.  885  of  the  Acts  of  1969,  which  became  effective 
November  28,  1969.  You  state  in  your  letter  that  a  "study  and  review 
of  [the  Act's]  .  .  .  provisions  leave  a  large  gray  area  of  doubt  and  incon- 
sistencies as  to  its  meaning  in  some  cases  and  consequently  its  method  of 
implementation."  For  these  reasons,  apparently,  you  desire  my  opinion 
on  several  matters,  and  for  convenience,  I  will  consider  your  questions 
seriatim. 

1.  Your  first  question  asks  whether  a  provider  of  assistance  or  the 
Department  of  Public  Welfare  is  responsible  for  sending  a  copy  of  a 
bill  to  the  recipient  of  assistance,  as  required  by  G.  L.  c.  18,  §  5C  (as 
amended  by  §  6  of  c.  885),  for  services  rendered  to  a  welfare  recipient 
under  any  assistance  program  of  the  Department  of  Public  Welfare. 

General  Laws,  c.  18,  §  5C  provides  in  pertinent  part: 

"Any  vendor  under  any  assistance  program  administered  by 
the  department  shall  submit  to  the  department  within  ninety 
days  a  bill  for  services  rendered,  a  copy  of  which  shall  be  sent 
to  the  recipient  ..." 

It  is  my  opinion  that  the  provider  of  assistance  (i.e.  the  vendor)  is 
the  party  responsible  for  sending  a  copy  of  the  bill  to  the  welfare  recipient. 
Section  5C  sets  forth  the  procedure  that  must  be  followed  before  a  vendor 
is  eligible  to  receive  payment  for  services  he  has  rendered  under  any 
assistance  program  administered  by  the  Department.  The  requirements 
for  eligibility  to  receive  payment  must  be  fulfilled  by  the  party  seeking 
to  qualify.    This  section  requires  the  vendor  to  provide  the  recipient  of 


78  P.D.  12 

his  services  with  a  copy  of  his  bill  before  the  vendor  may  receive  pay- 
ment from  the  Department  for  those  same  services. 

2.  Your  second  question  asks  whether  the  Commissioner  is  required 
to  take  action  with  respect  to  persons  or  institutions  which  knowingly 
make  a  false  representation  to  the  Department  in  violation  of  G.  L.  c.  18, 
§  5B  (as  amended  by  §  6  of  c.  885),  and,  further,  at  what  time  the 
Commissioner  may  receive  a  "submission  of  proof"  that  a  clerical  or 
administrative  error  led  to  the  proscribed  false  representation.  General 
Laws,  c.  18,  §  5B  provides: 

"Any  person  or  institution  which  knowingly  makes  a  false 
representation  to  the  department  of  public  welfare  or  its  agents, 
for  the  purpose  of  causing  any  persons,  including  the  person 
making  such  representations,  to  be  supported  in  whole  or  in 
part  by  the  commonwealth,  or  for  the  purpose  of  procuring  a 
payment  under   any  assistance  program  administered  by  the 
department,  or  by  fradulent  means  obtains  any  such  payment, 
shall  be  punished  by  a  fine  of  not  less  than  two  hundred  nor 
more  than  five  hundred  dollars  or  by  imprisonment  for  not 
more  than  one  year." 
In  my  opinion,  the  Commissioner  may  not  treat  the  provisions  of  this 
section  as  optional  at  least  in  so  far  as  reference  of  any  violation  which 
comes  to  his  attention  is  concerned.    The  statute  provides  that  violators 
"shall  be  punished"  for  a  violation  of  the  section,  and  if  the  Commissioner 
has  evidence  of  such  violation,  he  has  a  duty,  as  the  chief  administrator 
of  the  Department  of  Public  Welfare,  to  make  that  evidence  known  to 
the  Attorney  General  or  the  appropriate  District  Attorney,  as  the  case 
may  be,  or  seek  a  complaint  from  a  district  court. 
General  Laws,  c.  18,  §  5D  provides: 

"Any  vendor  procuring  a  payment  under  any  assistance  pro- 
gram administered  by  the  department  who  violates  any  of  the 
provisions  of  section  five  B  shall  be  ineligible  to  participate 
further  in  the  program  for  a  period  of  three  years  next  subse- 
quent to  the  date  of  said  violation.    However,  a  vendor  shall 
not  be  considered  in  violation  of  section  five  B  upon  submission 
of  proof,   to  the  satisfaction  of  the  commissioner,   that  such 
violation  was  due  solely  to  clerical  or  administrative  error." 
Again,  the  Commissioner  may  not  treat  the  provisions  of  this  section 
as  optional.    A  person  who  violates  G.  L.  c.   18,  §  5B  is  clearly  made 
ineligible  to  receive  payments  form  the  department  under  that  program 
for  a  period  of  three  years.    The  statute  states  that  a  violator  "shall  be 
ineligible  to  participate  further  in  the  program,"  and,  in  my  opinion,  the 
Commissioner  has  no  choice  but  to  exclude  the  violator  from  participa- 
tion. 

With  respect  to  the  appropriate  time  for  the  submission  of  the  proof 
referred  to  in  G.  L.  c.  18,  §  5D,  it  is  my  further  opinion  that  the  Com- 
missioner is  obligated  to  accept  evidence  that  a  violation  was  due  solely 
to  a  clerical  or  administrative  error  whenever  such  evidence  becomes 
available.  The  proof  may  be  submitted  at  any  time  before  or  during 
criminal  proceedings,  and,  if  the  Commissioner  is  satisfied  as  to  the  proof, 
he  is  relieved  of  his  duty  to  take  action  with  respect  to  a  person  or  insti- 


P.D.  12  79 

tution  for  an  apparent  violation  of  section  5B.  If  criminal  proceedings 
have  been  begun,  the  Commissioner  does  have  an  obligation  to  bring  any 
determination  which  he  may  make  pursuant  to  section  5D  to  the  atten- 
tion of  the  Court. 

3.  Your  third  question  involves  the  problem  of  under  what  circum- 
stances the  department  may  recover  payment  made  for  assistance  granted 
under  the  Public  Welfare  programs  to  persons  not  entitled  to  receive 
payment.   In  this  connection,  G.  L.  c.  18,  §  5E  provides: 

"Any  recipient  or  vendor  who  receives  payment  under  any 
assistance  program  administered  by  the  department,  to  which 
he  is  not  entitled,  shall  return  such  payment  to  the  common- 
wealth by  paying  the  same  to  the  state  treasurer  as  soon  as 
demand  is  made  upon  him." 

The  above-quoted  section  gives  the  Commonwealth  the  right  to  be 
reimbursed  from  the  recipient  or  vendor  in  cases  where  payment  has 
been  made  and  subsequent  disclosures  show  that  the  recipient  or  vendor 
was  ineligible  at  the  time  of  payment  to  receive  it,  I  decline,  however, 
to  delineate  the  factual  circumstances  under  which  the  Commonwealth 
may  exercise  this  right  to  repayment.  At  this  point  in  time,  the  problem 
is  purely  anticipatory,  and,  absent  more  definite  facts,  an  opinion  is  not 
possible.  The  problem  does  not  appear  to  be  susceptible  of  resolution 
by  the  adoption  of  general  guidelines  or  standards. 

4.  Your  fourth  question  asks  what  effect  the  last  sentence  of  G.  L. 
c.  18,  §  7  (as  amended  by  §  8  of  c.  885)  has  on  the  next  to  the  last 
sentence  of  that  section.    The  two  sentences  in  question  read: 

"The  members  of  the  community  service  boards  shall  receive 
no  compensation  for  their  services  but  shall  be  reimbursed  for 
expenses  necessarily  incurred  in  rendering  such  services. 

"The  members  of  the  community  service  boards  shall  receive 
no  compensation  for  their  services  but  shall  be  reimbursed  for 
travel  expenses  necessarily  incurred  in  rendering  such  services 
within  the  local  service  areas." 

The  two  sentences  quoted  above  appear  to  be  somewhat  duplicative 
and  confusing.  The  first  provides  that  "expenses"  shall  be  reimbursed, 
while  the  second  provides  that  "travel  expenses"  incurred  for  rendering 
services  "within  the  local  service  areas"  shall  be  reimbursed.  It  is  clear 
that  the  section  allows  reimbursement,  at  the  very  least,  of  travel  expenses. 
I  am  inclined  to  the  view  that  the  Legislature  intended  only  travel  ex- 
penses to  be  reimbursed,  despite  the  inclusion  of  the  first  sentence  quoted 
above.  It  is  a  general  rule  of  statutory  construction  that  "particular  words 
and  phrases  will  limit  and  define  general  words  and  phrases  which  are  to 
be  found  within  the  confines  of  the  same  statute  and  which  might  embrace 
related  acts  or  conduct.  Roller  v.  Diiggan,  346  Mass.  270,  at  273.  It  is 
therefore  my  opinion  that  only  travel  expenses  are  reimbursable. 

5.  Your  fifth  question  asks  to  what  extent,  if  any,  the  amendment  to 
G.  L.  c.  18,  §  10  limits  the  power  and  duty  of  the  Commissioner  to 
make  and  revise  rules  and  regulations,  as  defined  in  G.  L.  c.  30A,  prior 
to  review  by  the  "Commissioner  of  Administration  and  Finance." 


80  P.D.  12 

Section  9  amends  G.  L.  c.  18,  §  10  by  adding  two  sentences  at  the 
end  of  the  section  so  that  the  section  now  reads: 

"...  The  Commissioner  shall  make  and  from  time  to  time 
revise  and  publish  such  rules  and  regulations  for  the  conduct 
of  the  business  of  the  department  and  the  execution  of  the 
programs  administered  by  the  department  as  may  be  necessary 
or  appropriate.    Such  rules  and  regulations  shall  be  submitted 
to  the  commissioner  of  administration  and  finance  for  review 
prior  to  publication.    The  extent  of  such  review  shall  be  no 
greater  than  that  allowed  by  the  federal  Social  Security  Act." 
This  section  does  not  provide  any  limitation  on  the  present  power  and 
duly  of  the  Commissioner  to  make  and  revise  rules  and  regulations,  as 
defined  in  G.  L.  c.  30A,  prior  to  review  by  the  Commissioner  of  Admin- 
istration and  Finance.    The  Federal  Social  Security  Act  includes  a  section, 
42  U.S.C.  §  1316(a)(1),  entitled  "Administrative  and  judicial  review  of 
Public  Assistance  Determinations."    The  administrative  review  provided 
for  in  that  section  is  that  the  Secretary  of  Health,  Education  and  Welfare 
shall  determine  whether  the  plan   submitted  to  him   "conforms  to  the 
requirements  for  approval"  as  set  forth  in  the  sub-chapter  of  Tide  42, 
U.S.C.  pursuant  to  which  the  plan  is  submitted. 

The  Commissioner  of  Administration  must  approve  the  rules  and 
regulations  submitted  by  the  Commissioner  of  Public  Welfare  if  the  rules 
and  regulations  conform  to  the  requirements  for  approval  found  in  the 
chapter  of  the  General  Laws  which  authorizes  the  rules  and  regulations. 
Such  a  requirement  does  not  constitute  a  limitation  on  the  power  and 
duty  of  the  Commisioner  of  Public  Welfare  under  G.  L.  c.  30 A,  for  it 
does  not  permit  the  Commissioner  of  Administration  and  Finance  to 
review  discretionary  or  policy  matters  embodied  in  the  rules.  He  may 
only  disapprove  the  rules  if  they  are  found  not  to  be  authorized  by 
statute. 

6.  Your  sixth  question  asks  whether  the  Department  can  by  rule 
place  a  limit  of  sixty  days  within  which  an  appeal  must  be  brought 
before  the  Commissioner  because  of  the  failure  of  the  Department  to 
respond  to  the  needs  of  an  applicant  for  assistance.  In  this  respect,  G.  L. 
c.  18,  §  16  (as  amended  by  §  11  of  c.  885),  provides: 

"Any  person  aggrieved  by  the  failure  of  the  department  to 
render  adequate  aid  or  assistance  under  any  program  of  aid 
or  assistance  administered  by  the  department,  or  to  approve  or 
reject  an  application  for  aid  or  assistance  thereunder  within 
thirty  days  after  receiving  such  application,  or  aggrieved  by 
the  withdrawal  of  such  aid  or  assistance,  or  by  coercive  or 
otherwise  improper  conduct  on  the  part  of  his  social  worker, 
shall  have  a  right  to  a  hearing,  after  due  notice,  upon  appeal 
to  the  commissioner  of  public  welfare.  Such  hearing  shall  be 
conducted  by  a  referee  designated  by  the  commissioner  at  a 
location  convenient  to  the  person  appealing  and  shall  be  con- 
ducted as  an  adjudicatory  proceeding  under  chapter  thirty  A. 
Any  referee  so  designated  is  hereby  empowered  to  subpoena 
witnesses,  administer  oaths,  take  testimony  and  secure  the 
production  of  such  books,  papers,  records  and  documents  as 


P.D.  12  81 

may  be  relevant  to  such  hearing.  The  decision  of  the  referee, 
when  approved  by  the  commissioner,  shall  be  the  decision  of 
the  department  and  shall  be  subject  to  review  in  accordance 
with  the  provisions  of  said  chapter  thirty  A. 

"When  a  hearing  is  requested  because  of  termination  or  re- 
duction of  assistance,  involving  an  issue  of  fact,  or  of  judgment 
relating  to  the  individual  case,   between  the  agency   and  the 
appeUant,  assistance  will  be  continued  during  the  period  of  the 
appeal  and  through  the  end  of  the  month  in  which  the  final 
decision  of  the  hearing  is  reached.   If  assistance  has  been  termi- 
nated prior  to  timely  request  for  fair  hearing,  assistance  will  be 
reinstated." 
The  only  reference  to   a  jurisdictional  requirement  in  section    16  is 
found  in  the  second  paragraph  where   the  Legislature   used  the  word 
"timely"  in  reference  to  a  request  for  a  hearing  on  reduction  or  termi- 
nation of  assistance.    In  the  absence  of  any  time  limitation  for  filing  a 
request  for  a  hearing,  it  is  my  opinion  that  the  matter  can  be  dealt  with 
pursuant  to  the  Commissioner's  rule-making  powers  found  in  G.  L.  c.  18, 
§  10.   In  this  respect,  I  note  that  G.  L.  c.  USE,  §  22  as  inserted  by  §  1 
of  c.  800  of  the  Acts  of  1969,  provides  for  a  sixty-day  period  within 
which  to  file  a  request  for  a  hearing  with  respect  to  medical  assistance 
claims,  and  such  a  period  might  also  be  used  in  any  rule  which  the 
Commissioner  may  issue  pursuant  to  G.  L.  c.  18,  §   10  in  order  to  im- 
plement the  provisions  of  §   16  of  the  same  chapter. 

7.  Your  seventh  question  asks  my  opinion  as  to  how  and  by  whom 
"an  emergency"  may  be  defined  and  determined  to  exist  under  G.  L. 
c.  18,  §  19,  as  added  by  section  12  of  Chapter  885.  Section  19  reads 
in  part: 

"In  the  case  of  an  emergency  or  where  a  recipient  is  evicted 
from  a  furnished  or  partially  furnished  apartment  and  does  not 
have  sufiicient   basic  furniture   to   set   up  housekeeping,   such 
furniture  may  be  authorized  by  the  department  after  investi- 
gation by  ihe  social  worker  and  determination  by  the  district 
supervisor  that  a  need  exists  ..." 
It  is  my  opinion  that  the  Commissioner  of  Public  Welfare  has  the 
power  to  define  and  determine  when  "an  emergency"  within  the  meaning 
of  G.  L.  c.    18,   §    19,  exists,  and  that  the  problem  can  best  be  met 
through  the  exercise  of  the  Commissioner's  rule-making  powers  found 
in  G.  L.  c.   18,  §   10.    The  Legislature  has  refrained  from  including  a 
detailed  definition  of  the  word  "emergency",  and  in  the  absence  of  any 
such  express   definition,   the  Commissioner  must  rely  on  the  expertise 
which  he  and  his  staff  have  with  respect  to  welfare  problems  generally 
to  define  the  term  further. 

I  note  that  the  statute,  particularly  G.  L.  c.  18,  §  2(A)(1)  sets  forth 
in  broad  and  general  terms  what  the  duties  and  obligations  of  the  de- 
partment are: 

"The  department  shall  provide  and  administer  throughout 
the  commonwealth  a  comprehensive  public  welfare  program, 
including  the  following  services:  ...  the  provision  of  financial 
assistance  to  those  in  economic  need  .  .  .  ;  comprehensive  family 


82  P.D.  12 

and  child  welfare  services;  .  .  .  and  other  forms  of  social  wel- 
fare service  to  families  and  individauls  as  needed." 
It  would  appear  that  any  rules  and  regulations  designed  to  implement 
G.  L.  c.  18,  §   19  should  reflect,  in  so  far  as  it  is  possible,  the  broad 
mandate  which  the  Legislature  has  given  the  Department. 

8.  Your  eighth  question  asks  my  opinion  "as  to  the  proper  method 
of  implementing  a  hearing  for  appeal  by  a  recipient  against  his  Social 
Worker  as  provided  in  .  .  .  [G.  L.  c.  18,  §  221  and  section  11  in  a 
manner  consistent  with  the  rights  of  an  employee  in  accordance  with  the 
provisions  of  Chapter  31." 

The  last  paragraph  of  G.  L.  c.  18,  §  22  provides: 

"Failure  on  the  part  of  any  social  worker  to  make  such  visits 
as  provided  herein  may  be  the  basis  for  an  appeal  by  the 
recipient  as  set  forth  in  section  sixteen.  Such  failure  shall  also 
be  grounds  for  disciplinary  action  against  the  social  worker  in 
accordance  with  provisions  set  forth  in  chapter  thirty-one." 

In  my  opinion,  a  hearing  for  appeal  should  be  held  under  this  section 
in  the  same  manner  as  for  all  appeals  brought  under  G.  L.  c.  18,  §  16. 
However,  the  last  paragraph  of  section  22  provides  for  two  separate  and 
distinct  proceedings.  The  first  proceeding  is  the  granting  of  a  hearing 
to  a  recipient  aggrieved  by  the  failure  of  his  Social  Worker  to  make  visits 
as  provided  for  in  the  section.  The  second  proceeding  is  the  determination 
of  whether  disciplinary  action  should  be  taken  by  the  Department  against 
the  Social  Worker  for  his  failure  to  make  such  visits. 

Any  disciplinary  proceeding  against  a  social  worker  must  be  conducted 
pursuant  to  the  provisions  of  G.  L.  c.  31,  separate  from  the  hearing  on 
an  appeal  brought  by  a  recipient  of  assistance.  The  recipient  has  a  right 
under  G.  L.  c.  18,  §  16  to  a  hearing  before  a  referee  appointed  by  the 
Commissioner.  If  it  is  determined  that  a  social  worker  has  failed  to 
make  visits  as  required  by  G.  L.  c.  18,  §  22,  such  failure  constitutes 
grounds  for  the  institution  of  disciplinary  proceedings  brought  under  the 
provisions  of  G.  L.  c.  31,  and  any  changes  preferred  in  such  a  proceeding 
would  have  to  be  proved  independently. 

9.  Your  last  question  asks  whether  G.  L.  c.  18,  §  23,  as  added  by 
section  12  of  Chapter  885,  makes  mandatory  the  performance  of  all 
functions  listed  in  that  section  by  a  social  worker  or  whether  these 
functions  may  be  performed  by  someone  other  than  a  social  worker. 

General  Laws,  c.   18,  §  23  provides: 

"The  duties  of  the  social  worker  shall  include  but  not  be 
limited  to  the  following: 

"1.  Investigating  the  eligibility  and  extent  of  the  applicant's 
need  and  developing  a  plan  of  social  assistance  in  accordance 
with  section  two. 

"2.  Where  necessary,  obtaining  documentary  evidence  per- 
taining to  eligibility  and  resources  of  applicant,  such  as  records 
of  birth,  marriage,  property  and  monetary  resources. 

"3.  Assisting  applicants  and  recipients  in  utilizing  financial, 
health  and  social  service  rehabilitation  within  the  family. 


P.D.  12  83 

"4.  Visiting  foster  homes  to  interview  both  the  foster  parents 
and    the   foster   children    to    determine    the   development    and 
adjustment  of  the  foster  children.    Periodic  visits  shall  also  be 
made  to  the  schools  that  the  foster  children  may  be  attending." 
It  is  my  opinion  that  the  duties  enumerated  in  section  23  must  be 
carried  out  by  a  social  worker.    Each  duty  requires  some  expertise  in 
the  field,  and  the  Legislature  has  set  forth  the  duties  as  "the  duties  of 
the  social  worker  ..."    Under  those  circumstances,  they  may  not  be 
performed  by  any  other  person. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  21  December  12,  1969 

HONORABLE  ARTHUR  W.  BROWNELL 

Commissioner  of  Natural  Resources 

Dear  Commissioner  Brownell: 

You  have  requested  my  opinion  on  a  question  arising  from  the 
administration,  by  your  Department,  of  the  so-called  "Self-Help  Program" 
which  provides  for  reimbursement  to  cities  and  towns  of  up  to  fifty  per- 
cent of  the  cost  of  acquisition  of  land  to  be  held  for  conservation  purposes. 

Specifically,  you  ask: 

"[I]s  it  necessary  for  a  town  to  vote  to  authorize  a  duly  estab- 
lished conservation  commission  to  acquire  land  under  either 
G.  L.  c.  40,  §  8C  or  G.  L.  c.  132A,  §  11,  and,  if  so,  is  a 
two-thirds  vote  required  .  .  .  ?" 

In  considering  your  question,  it  is  necessary,  at  the  outset,  to  review 
briefly  the  pertinent  statutory  provisions.  I  note  that  G.  L.  c.  40,  §  8C 
permits  a  town,  which  accepts  the  provisions  thereof,  to  establish  a  con- 
servation commission.  That  section  provides,  in  pertinent  part,  as  follows: 

"Said  commission  may  receive  gifts  of  property,  both  real 
and  personal,  in  the  name  of  the  city  or  town,  subject  to  the 
approval  of  the  city  council  in  a  city  or  the  selectmen  in  a  town, 
such  gifts  to  be  managed  and  controlled  by  the  commission  for 
the  purposes  of  this  section.  Said  commission  may  acquire  by 
gift,  purchase,  grant,  bequest,  devise,  lease  or  otherwise  the  fee 
in  such  land  or  water  rights,  or  any  lesser  interest,  development 
right,  easement,  covenant,  or  other  contractual  right  including 
conveyances  on  conditions  or  with  limitations  or  reversions,  as 
may  be  necessary  to  acquire,  maintain,  improve,  protect,  limit 
the  future  of  or  otherwise  conserve  and  properly  utilize  open 
spaces  and  other  land  and  water  areas  within  their  city  or  town, 
and  shall  manage  and  control  the  same.  For  the  purposes  of 
this  section  a  city  or  town  may,  upon  the  written  request  of  the 
commission,  take  by  eminent  domain  under  chapter  seventy- 
nine,  the  fee  or  any  lesser  interest  in  any  land  or  waters  located 
in  such  city  or  town,  provided  such  taking  has  first  been  ap- 


84  P.D.  12 

proved  by  a  two-thirds  vote  of  the  city  council  or  a  two-thirds 
vote  of  an  annual  or  special  town  meeting,  which  land  and 
waters  thereupon  be  under  the  jurisdiction  and  control  of  the 
commission.  Upon  a  like  vote,  a  city  or  town  may  expend 
monies  in  the  fund,  if  any,  established  under  the  provisions  of 
clause  (51)  of  section  five  for  the  purpose  of  paying,  in  whole 
or  in  part,  any  damages  for  which  such  city  or  town  may  be 
liable  by  reason  of  any  such  taking." 

The  section  provides  that  a  town  conservation  commission  may  receive 
gifts  of  real  or  personal  property,  subject  to  the  approval  of  the  select- 
men, to  be  held  and  managed  by  the  commission  for  the  purposes  of  the 
section.  In  addition,  a  conservation  commission  may  acquire  by  gift,  pur- 
chase, bequest,  devise  or  lease  such  property  as  the  commission  may  deem 
necessary  to  carry  out  the  purposes  of  the  section.  There  is  no  require- 
ment, in  these  latter  instances,  that  the  acquisition  be  approved  by  the 
selectmen  or  any  other  governmental  body  or  agency.  However,  prior  to 
an  eminent  domain  taking  authorized  by  §  8C,  a  two-thirds  vote  of  an 
annual  or  special  town  meeting  is  required,  and  a  similar  two-thirds  vote 
is  required  prior  to  the  expenditure  of  monies  from  a  conservation  fund 
for  such  a  taking. 

General  Laws,  c.  40,  §  5,  cl.  (51),  authorizes  a  city  or  town  to 
appropriate  money  to  a  "conservation  fund."  The  monies  so  appropriated 
to  such  a  fund  may  be  expended  by  a  commission  established  pursuant 
to  G.  L.  c.  40,  §  8C  "for  any  purpose,  other  than  a  taking  by  eminent 
domain,  authorized  by  section  eight  C."  Once  the  monies  have  been 
appropriated  by  the  town,  there  is  no  further  requirement  for  a  vote  of 
a  town  meeting  prior  to  an  expenditure  by  the  conservation  commission, 
except,  of  course,  in  the  case  of  an  eminent  domain  taking.  It  is  my 
opinion,  therefore,  that  it  is  not  necessary  that  a  town  vote  to  authorize 
a  duly  established  conservation  commission  to  acquire  land  under  G.  L. 
c.  40,  §  8C,  unless  the  acquisition  is  to  be  by  eminent  domain. 

In  answering  your  question,  I  have  considered  the  provisions  of  G.  L. 
c.  40,  §  14  and  have  determined  that  they  are  not  applicable.  That 
section  requires  a  vote  of  a  town  to  take  or  purchase  land  and  a  two- 
thirds  vote  for  an  appropriation  of  money  therefor,  when  land  is  sought 
"for  any  municipal  purpose  for  which  the  purchase  or  taking  of  land, 
easement  or  right  therein  is  not  otherwise  authorized  or  directed  by 
statute."  Clearly,  G.  L.  c.  40,  §  8C  "otherwise"  authorizes  the  purchase 
or  taking  of  land  for  conservation  purposes,  and  G.  L.  c.  40,  §  14  is 
not  applicable  here.  See  Shea  v.  Inspector  of  Buildings  of  Quincy,  323 
Mass.  552,  557. 

Having  determined  that  a  vote  of  a  town  is  not  a  condition  precedent 
to  the  acquisition  of  land  by  a  conservation  commision,  except  in  cases 
involving  eminent  domain  takings,  and  that  G.  L.  c.  40,  §  14  does  not 
apply  to  acquisitions  of  land  by  such  commissions,  a  further  question 
arises  from  the  application  of  the  provisions  of  G.  L.  c.  132A,  §  11. 
That  section,  in  pertinent  part,  is  as  follows: 

"The  commissioner  shall  establish  a  program  to  assist  the 
cities  and  towns,  which  have  established  conservation  com- 
missions under  section  eight  C  of  chapter  forty,  in  acquiring 


P.D.  12  85 

lands    and   in  planning   or   designing   suitable   public   outdoor 
facilities  as  described  in  sections  two  B  and  two  D.  He  may  .  .  . 
reimburse  any  such  city  or  town  for  any  money  expended  by 
it  in  establishing  an  approved  project  under  said  program  in 
such  amount  as  he  shall  determine  to  be  equitable  in  consider- 
ation of  anticipated  benefits  from  such  project,  but  in  no  event 
shall  the  amount  of  such  reimbursement  exceed  fifty  per  cent 
of  the  cost  of  such  project.    No  reimbursement  shall  be  made 
hereunder  to  a  city  or  town  unless  a  project  application  is  filed 
by  such  city  or  town  with  the  commissioner  setting  forth  such 
plans  and  information  as  the  commissioner  may  require  and 
approved  by  him,  nor  until  such  city  or  town  shall  have  appro- 
priated, transferred  from  available  funds  or  have  voted  to  ex- 
pend  from   its    conservation   fund,    under   clause   fifty-one    of 
section  five  of  chapter  forty,  an  amount  equal  to  the  total  cost 
of  the  project,  nor  until  the  project  has  been  completed,  to  the 
satisfaction  of  the  commissioner  in  accordance  with  said  ap- 
proved plans  ..." 
The  provisions  of  the  section  authorize  reimbursement,  up  to  fifty  per- 
cent, to  cities  and  towns  for  the  cost  of  acquiring  land  to  be  held  for 
conservation  purposes,  although  the  section  does  not  itself  provide  the 
statutory  authorization  for  the  land  acquisition.    That  authorization,  as  I 
have  stated,  supra,  is  found  in  G.  L.  c.  40,  §  8C.   If  a  city  or  town  does 
not  seek  reimbursement  for  a  portion  of  the  land  acquisition  cost,  the 
provisions  of  the  section  do  not  come  into  play.    However,  if  reimburse- 
ment is  sought  from  the  Commonwealth,  the  section  sets  forth  certain 
conditions  which  must  be  met. 

Those  conditions  are  (1)  that  a  project  application  be  filed  with  the 
commissioner  in  conformity  with  the  requirement  of  section  11;  (2)  that 
the  city  or  town  "shall  have  appropriated,  transferred  from  available 
funds  or  have  voted  to  expend  from  its  conservation  fund,  under  clause 
fifty-one  of  section  five  of  chapter  forty,  an  amount  equal  to  the  total 
cost  of  the  project";  and  (3)  that  the  project  be  completed. 

General  Laws  c.  132A,  §  11,  does  not,  then,  require  that  a  town  vote 
to  authorize  a  conservation  commission  to  acquire  land  to  be  held  for 
conservation  purposes.  At  some  point  in  time,  however,  it  is  necessary 
that  a  town  "have  appropriated,  transferred  from  available  funds  or  have 
voted  to  expend  from  its  conservation  fund"  an  amount  which  will  com- 
pletely cover  the  cost  of  a  project,  if  the  town  wishes  to  be  reimbursed 
from  the  Commonwealth  for  a  portion  of  the  land  acquisition  cost.  The 
appropriation,  transfer  or  vote  to  expend,  as  the  case  may  be,  may  be 
accomplished  by  majority  vote  of  an  annual  or  special  town  meeting, 
unless  the  project  requires  a  taking  by  eminent  domain. 

In  conclusion,  then,  it  is  my  opinion  that  a  conservation  commission 
may  acquire  land,  as  authorized  by  G.  L.  c.  40,  §  8C,  without  the  vote 
of  a  town  meeting  and  that  a  commission  may  expend  monies  from  a 
conservation  fund  for  such  purposes,  with  the  exception  that  if  land  is 
to  be  taken  by  eminent  domain,  a  two-thirds  vote  of  a  town  meeting  is 
required  in  both  instances.  It  is  my  further  opinion  that  G.  L.  c.  40, 
§  14  is  not  applicable  in  such  ckcumstances,  and,  finally,  that  G.  L. 


86  P.D.  12 

c.  132A,  §  11  requires,  prior  to  reimbursement  from  the  Commonwealth 
to  a  town,  that  the  town  have  appropriated,  transferred  or  voted  to  expend 
the  amount  required  by  section  1 1 ,  and  that  such  action  be  by  majority 
vote. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  22  December  17,  1969 

DR.  JOHN  W.  LEDERLE,  President 
University  of  Massachusetts 

Dear  Doctor  Lederle : 

By  letter  transmitted  by  the  Chancellor  of  the  Board  of  Higher 
Education,  you  have  requested  my  opinion  with  respect  to  whether  the 
University  of  Massachusetts  at  Amherst  has  "the  authority  to  bargain 
collectively  on  matters  relating  to  non-professional  employees,  such  as 
wages,  vacation,  holiday,  sick  leave,  etc.,  or  whether  such  employees 
come  under  the  laws,  rules  and  regulations  of  the  Commonwealth." 
For  the  reasons  hereinafter  stated,  I  find  that  the  University  has  the 
authority  to  bargain  collectively  with  non-professional  employees,  but  I 
decline  to  delineate  the  scope  of  that  bargaining. 

The  question  you  raise  concerns  the  power  of  the  Trustees  of  the 
University  to  engage  in  collective  bargaining  with  its  non-professional 
employees.  A  reply  to  this  issue  requires  an  examination  of  the  provisions 
of  G.  L.  c.  75  relating  to  the  University  of  Massachusetts  and  those  of 
G.  L.  c.  149,  §  178F  concerning  collective  bargaining  by  state  employees. 

Chapter  648  of  the  Acts  of  1962  significantly  amended  G.  L.  c.  75 
and  expanded  the  authority  of  the  Board  of  Trustees  of  the  University 
of  Massachusetts.  As  amended,  G.  L.  c.  75,  §  1  provides  that  the  Uni- 
versity shall  continue  as  a  state  institution  within  the  department  of 
education  "but  not  under  its  control  and  shall  be  governed  solely  by  the 
board  of  trustees  ..."  It  further  specifies  that  in  exercising  its  authority, 
responsibility,  powers  and  duties, 

"...  said  board  shall  not  in  the  management  of  the  affairs  of 
the  university  be  subject  to,  or  superseded  in  any  such  authority 
by,  any  other  state  board,  bureau,  department  or  commission, 
except  as  herein  provided." 

General  Laws,  c.  75,  §  3  states: 

"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  its  ,.  .  employees  .  .  . 
as  they  may  deem  necessary  ..." 

In  G.  L.  c.  75,  §  14,  the  subject  of  non-professional  personnel  is 
defined : 

"  'Non-professional  staff',  all  employees  who  are  not  classified 
as  professional  personnel,  such  as  clerical,  custodial,  security, 
labor,  maintenance  and  the  like. 


P.D.  12  87 

"The  non-professional  personnel  of  the  university  shall  con- 
tinue as  state  employees  under  the  provisions  of  chapter  thirty 
and  except  as  otherwise  provided  in  this  paragraph,  shall  be 
employed  in  authorized  permanent  positions  in  accordance  with 
the  provisions  of  section  forty-five  of  said  chapter;  provided, 
however,  that  the  university  shall  have  the  authority  without 
prior  approval  and  within  the  limits  of  appropriations  to  estab- 
lish and  fill  temporary,  part-time  and  seasonal  positions  within 
existing  titles  and  rates  withm  available  appropriations  for  the 
fiscal  year  .  .  . 

"All  officers  and  employees,  professional  and  non-profes- 
sional, shall  continue  to  be  employees  of  the  commonwealth 
irrespective  of  the  source  of  funds  from  which  their  salaries 
or  wages  are  paid.  They  shaU  have  the  same  privileges  and 
benefits  of  other  employees  of  the  commonwealth  such  as  re- 
tirement benefits,  group  insurance,  industrial  accident  coverage, 
and  other  coverage  enjoyed  by  all  employees  of  the  common- 
wealth." 

The  legislative  intent  in  passing  these  and  related  measures  is  to  be 
ascertained  from  the  language  used,  the  evil  to  be  remedied,  and  the 
object  to  be  accomplished  by  the  enactment.  New  York  Central  Railroad 
V.  A^^vv  England  Merchants  National  Bank,  344  Mass.  709,  713. 

The  legislative  history  of  c.  648  of  the  Acts  of  1962  reveals  that  the 
purpose  of  the  Act  was  to  resolve  the  conflict  between  state  central  con- 
trol agencies  and  their  need  for  information  on  the  one  hand,  and  the 
University's  claim  for  greater  freedom  of  operation  on  the  other.  House 
Document  No,  3350  of  1962,  Report  of  the  Special  Commission  on 
Budgetary  Powers  of  the  University  of  Massachusetts  and  Related  Matters, 
at  p.  9.  More  specifically,  the  task  before  the  Legislature  was  to  decide 
which  among  the  existing  administrative  controls  needed  to  be  changed 
or  eliminated  at  state-supported  institutions  of  higher  learning  in  order  to 
promote  the  purpose  and  objectives  of  public  higher  education.  Id.  at 
p.  13.  Fiscal  management  and  policy,  together  with  recruitment  and  ten- 
ure of  professional  personnel,  were  of  primary  concern,  while  the  subject 
of  non-professional  personnel  received  only  passing  attention.  Id.  at  pp. 
17-30,  34-37.  Only  the  procedures  for  filling  non-professional  temporary 
and  part-time  positions  were  recommended  for  change;  the  status  of  such 
personnel  as  state  employees  was  continued.  Id.  at  p.  37.  It  is  clear 
that  the  substantive  rights  of  non-professional  employees  as  state  em- 
ployees remained  unaltered  by  the  Act. 

General  Laws,  c.  149,  §  178F,  as  amended  by  c.  774  of  the  Acts  of 
1967,  concerns  collective  bargaining  by  state  employees.  Under  sub- 
section one  the  following  definitions  appear: 

"  'Employee',  any  employee  of  the  commonwealth  assigned 
to  work  in  any  department  .  .  .  thereof  .  .  . 

"  'Employer',  the  commonwealth,  acting  through  a  depart- 
ment or  agency  head  as  agent,  or  any  person  so  designated  by 
such  department  or  agency  head. 


88  P.D.  12 

"  'Employee  organization',  any  lawful  association,  organiza- 
tion, federation,  council  or  labor  union,  the  membership  of 
which  includes  employees  of  the  commonwealth,  and  having 
as  a  primary  purpose  the  improvement  of  working  conditions 
for  employees  of  the  commonwealth." 

Subsection  two  provides  that  employees  "shall  have  ...  the  right  .  .  . 
to  bargain  collectively  through  representatives  of  their  own  choosing 
and  to  engage  in  concerted  activities  for  the  purpose  of  collective  bar- 
gaining ..."  Procedures  for  establishing  the  appropriate  collective 
bargaining  unit,  conducting  collective  bargaining,  and  executing  a  written 
agreement  are  provided,  while  powers  incidental  thereto  are  granted  to 
the  Director  of  Personnel  and  Standardization  and  the  Labor  Relations 
Commission.    G.  L.  c.  149,  §   178F  (2)-(ll). 

The  answer  to  your  question  depends  upon  the  extent,  if  any,  that 
G.  L.  c.  75  is  affected  by  G.  L.  c.  149,  §  178F.  This  involves  the  inter- 
pretation of  the  latter  statute  with  the  objective  of  ascertaining  the  true 
intent  of  the  Legislature  from  the  words  used.  Lehan  v.  North  Main 
Street  Garage,  Inc.,  312  Mass.  547,  550.  Such  words  are  the  main  source 
for  the  ascertainment  of  legislative  purpose  and  should  be  construed  ac- 
cording to  their  natural  import  in  common  and  approved  usage.  Tilton 
v.  Haverhill,  311  Mass.  572,  577. 

The  language  of  the  statute  makes  it  clear  that  the  Legislature's  over- 
riding purpose  was  to  provide  all  state  employees  falling  within  the  defi- 
nition of  subsection  one  with  a  comprehensive  right  to  bargain  collectively. 
As  a  General  Law,  the  statute  should  be  construed  so  as  to  effectuate 
its  salutary  and  important  purpose.  Foley  v.  Lawrence,  336  Mass.  60,  65. 
To  interpret  the  statute  as  excluding  significant  numbers  of  state  em- 
ployees would  completely  frustrate  the  legislative  intent  and  such  a  con- 
struction should  be  avoided.  Board  of  Assessors  of  Newton  v.  Pickwick 
Ltd.,  Inc.,  351  Mass.  621,  625. 

To  the  extent  that  any  of  the  provisions  of  G.  L.  c.  75,  cited  above, 
might,  in  their  application,  be  repugnant  to  and  inconsistent  with  the 
provisions  of  G.  L.  c.  149,  §  178F,  the  former,  earlier  enactment  must 
give  way  in  order  that  the  latter  statute  may  not  be  rendered  useless. 
Doherty  v.  Commissioner  of  Administration,  349  Mass.  687,  690.  This 
result  is  consistent  with  legislative  intent,  since  the  Legislature  is  presumed 
to  understand  and  intend  all  consequences  of  its  own  measures,  Spaulding 
v.  McConnell,  307  Mass.  144,  149,  and  to  have  known  the  existing  statute 
law  at  the  time  its  measures  were  enacted.  Mathewson  v.  Contributory 
Retirement  Appeal  Board,  335  Mass.  610,  614. 

I  therefore  answer  your  question  in  part  by  stating  that  the  University 
does  have  the  authority  to  enter  into  collective  bargaining  with  an  appro- 
priate bargaining  unit  representing  non-professional  employees  in  accord- 
ance with  G.  L.  c.  149,  §  178F. 

However,  I  understand  your  letter  as  raising  the  further  question 
whether  the  Trustees  of  the  University  have  the  authority  to  bargain 
collectively  on  any  and  presumably  all  matters  respecting  non-professional 
employees,  such  as  wages,  vacation,  holidays,  sick  leave,  etc.,  although 
such  matters  may  presently  be  the  subject  of  laws,  rules  and  regulations 


P.D.  12  89 

of  the  Commonwealth.  In  effect,  you  are  requesting  an  opinion  relative 
to  any  matter  which  may  arise  in  the  course  of  future  collective  bargain- 
ing. 

A  response  to  this  part  of  your  question  would  require  an  examination 
of  all  statutes  and  acts,  as  well  as  all  rules  and  regulations  thereunder, 
having  any  possible  bearing  on  G.  L.  c.  149,  §  178F,  with  the  object 
of  determining  their  combined  effect  in  an  infinite  range  of  merely  hypo- 
thetical situations.  This  I  decline  to  do.  As  I  stated  in  my  opinion  of 
June  4,  1969,  to  Commissioner  Howard  Whitmore,  Jr.  of  the  Metro- 
politan District  Commission,  I  am  inclined  to  the  view  that  the  legal 
questions  which  arise  in  collective  bargaining  negotiations  are  often  so 
tentative  and  anticipatory  that  they  are  not  appropriate  for  formal  legal 
opinions  by  the  Attorney  General.  Since  this  part  of  your  question  is  of 
such  a  nature,  it  appears  inappropriate  for  me  to  express  an  opinion 
thereon.  Members  of  my  staff  will,  of  course,  be  available  to  provide  legal 
advice  and  guidance  relative  to  questions  that  arise  during  actual  collective 
bargaining  negotiations. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  23  December  19,  1969 

MRS.  MABEL  A.  CAMPBELL 

Director  of  Civil  Service 

Dear  Mrs.  Campbell: 

You  have  requested  my  opinion  whether,  in  view  of  the  provisions  of 
§  2  of  c.  811  of  the  Acts  of  1969,  provisional  appointments  to  the 
positions  of  case  aide  and  social  service  technician  may  be  made  prior 
to  the  establishment  of  an  eligible  list  for  appointment  to  those  positions. 
For  the  reasons  hereinafter  stated,  I  answer  your  question  in  the  affirm- 
ative. 

Section  2  of  c.  811  of  the  Acts  of  1969  included  an  item.  No.  1900- 
1000,  wherein  a  supplemental  appropriation  was  provided  for  the  office 
of  the  Commissioner  of  the  Department  of  Public  Welfare.  The  item 
included  a  proviso  with  respect  to  appointments  to  the  position  of  case 
aide  which  stated: 

"[Plrovided,  that  persons  employed  in  the  position  of  case  aide 
shall  not  be  subject  to  chapter  thirty-one  of  the  General  Laws; 
and  provided,  further,  that  any  provisional  or  temporary  em- 
ployee shall  be  appointed  from  a  civil  service  list  ..." 
I  note  that  §  12  of  c.  885  of  the  Acts  of  1969  also  included  a  provision 
with  respect  to  the  appointment  and  employment  of  case  aides.    That 
section  inserted  a  new  section  25  in  c.   18  of  the  General  Laws  which 
provides,  in  pertinent  part: 

"The  department  shall  provide  case  aides  whose  employment 
shall  not  be  subject  to  chapter  thirty-one,  .  .  .  provided,  how- 


90  P.D.   12 

ever,  that  wherever,  as  a  condition  of  receiving  federal  grants 
for  programs  and  activities  to  which  the  federal  standards  for 
a  merit  system  of  personnel  administration  relate,  federal  re- 
quirements make  necessary  the  application  of  the  civil  service 
laws  and  rules  to  any  such  position,  said  position  shall  be  sub- 
ject to  chapter  thirty-one." 

In  view  of  the  fact  that  you  have  advised  me  that  federal  requirements 
make  mandatory  the  application  of  the  civil  service  law  and  rules  to  the 
position  of  case  aide,  it  is  my  opinion  that  appointments  to  that  category 
must  be  made  in  compUance  with  the  provisions  of  G.  L.  c.  31  and  the 
rules  promulgated  thereunder.  It  is  a  general  principle  that  "[t]he  earlier 
statute  has  no  higher  standing  than  the  later  and  may  be  superseded 
thereby  wholly  or  in  part  when  such  is  the  clear  legislative  intention." 
Boston  Elevated  Railway  v.  Commonwealth,  310  Mass.  528,  551.  Op. 
Atty.  Gen.,  May  3,  1966,  p.  328.  With  respect  to  the  applicability  of 
the  civil  service  law  to  the  position  of  case  aide,  it  is  clear  that  the  General 
Court  intended  that  the  provisions  of  the  later  act  supersede  those  of  the 
earlier  act.  The  later  act,  c.  885  of  the  Acts  of  1969,  constitutes  legis- 
lative recognition  of  the  existence  of  possible  federal  requirements  in  the 
area. 

Having  determined,  therefore,  that  appointments  to  the  position  of  case 
aide  must  be  made  in  compliance  with  the  civil  service  law  and  rules,  the 
question  for  resolution  is  whether  those  appointments  may  be  made  on  a 
provisional  basis  absent  a  civil  service  eligible  list.  General  Laws,  c.  31, 
§  1  defines  "provisional  appointment"  as  "an  appointment  authorized  on 
a  requisition  when  there  is  no  suitable  eligible  list."  (Emphasis  supplied.) 
Thus,  an  inconsistency  is  at  once  apparent.  The  governing  statute  defines 
a  provisional  appointment  as  one  made  when  there  is  no  eligible  list; 
§  2  of  c.  811  of  the  Acts  of  1969  includes  a  provision  which  states  that 
provisional  and  temporary  appointments  shall  be  made  from  an  eligible 
list.  With  respect  to  temporary  appointments,  of  course,  no  problem 
arises.  However,  in  my  opinion  the  general  definition  of  "provisional 
appointment"  must  control.  In  view  of  the  general  definition  and  the  well- 
established  practice  of  making  provisional  appointments  when  there  is  no 
eligible  list,  the  general  definition  must  prevail  over  the  later  proviso.  To 
follow  any  other  course  would  render  an  important  portion  of  the  civil 
service  law  meaningless. 

It  is  clear  that  the  object  of  c.  811  was,  in  part,  to  provide  for  appoint- 
ments to  the  positions  of  case  aide  and  social  service  technician.  It  is 
well  setded  that  "[t]he  object  of  all  statutory  construction  is  to  ascertain 
the  true  intent  of  the  Legislature  from  the  words  used.  If  a  liberal,  even 
if  not  Hterally  exact,  interpretation  of  certain  words  is  necessary  to 
accomplish  the  purpose  indicated  by  the  words  as  a  whole,  such  interpre- 
tation is  to  be  adopted  rather  than  one  which  will  defeat  that  purpose." 
Lehan  v.  North  Main  Street  Garage,  Inc.,  312  Mass.  547,  550,  and  cases 
cited. 

The  language  of  the  statute  makes  it  clear  that  the  Legislature's  over- 
riding purpose  was  to  provide  for  appointments  to  the  positions  of  case 
aide  and  social  service  technician.  Once  an  eligible  list  is  established, 
provisional   appointments   are  unnecessary  for   permanent   appointments 


P.D.  12  91 

can  then  be  made.  The  Legislature  cannot  have  intended  that  implemen- 
tation of  the  programs  which  would  be  carried  out  by  case  aides  and 
social  service  technicians  must  await  the  application,  examination  and 
appointment  procedures  which  of  necessity  precede  permanent  appoint- 
ments. The  statute  should  be  construed  so  as  to  effectuate  its  salutary 
and  important  purpose.  Foley  v.  Lawrence,  336  Mass.  60,  65.  While  I 
recognize  that  normally  none  of  the  words  of  a  statute  are  to  be  regarded 
as  superfluous  (Commonwealth  v.  Woods  Hole,  Martha's  Vineyard  & 
Nantucket  S.  S.  Authy.,  352  Mass.  617,  618),  it  is  fundamental  that  the 
intention  of  the  Legislature  must  prevail,  any  rule  of  construction  to  the 
contrary  notwithstanding.  See  United  States  v.  Freeman,  3  How.  556, 
565;  Board  of  Assessors  of  Newton  v.  Pickwick  Ltd.,  Inc.,  351  Mass.  621, 
625. 

In  conclusion,  then,  it  is  my  opinion  that  provisional  appointments  to 
the  positions  of  case  aide  and  social  service  technician  may  be  made 
absent  the  existence  of  a  civil  service  eligible  list. 

Very  truly  yours, 
ROBERT  H.  QUINN 

Attorney  General 

No.  24  January  12,  1970 

HONORABLE  NEIL  V.  SULLIVAN 

Commissioner  of  Education 

Dear  Commissioner  Sullivan: 

You  have  requested  an  opinion  concerning  the  authority  of  a  local 
educational  agency  to  undertake  construction  with  state  and/or  local 
funds  on  federal  property  or  on  federal  property  leased  on  a  long-term 
basis  to  said  agency  by  the  federal  government.  According  to  the  in- 
formation provided,  you  specifically  ask  whether  funds  of  the  Town  of 
Ayer  may  be  used  for  the  construction  of  an  addition  to  an  elementary 
school  building  located  on  the  Fort  Devens  Military  Reservation.  Whether 
the  construction  funds  would  be  town  funds  exclusively  or  would  include 
state  contributions  under,  for  example,  G.  L.  c.  70,  §  1-9,  is  irrelevant 
to  the  issue  you  raise.  I  answer  your  question  in  the  negative  for  the 
reasons  hereinafter  stated. 

The  Fort  Devens  Military  Reservation  was  acquired  by  the  United 
States  with  the  Commonwealth's  consent  granted  pursuant  to  legislation 
enacted  in  1921,  1933  and  1950.  In  St.  1921,  c.  456,  §  1,  the  Common- 
wealth consented  to  the  acquisition  by  the  United  States  of  the  tract  of 
land  then  known  as  Camp  Devens  and  situated  in  the  Towns  of  Ayer  and 
Shirley  in  Middlesex  County  and  the  Towns  of  Harvard  and  Lancaster 
in  Worcester  County.  By  §  2,  the  Commonwealth  ceded  jurisdiction  over 
said  tract  to  the  United  States,  retaining  concurrent  jurisdiction  only  to 
the  extent  that  civil  and  criminal  process  of  the  Commonwealth  might 
be  executed  on  the  land  in  the  same  manner  as  though  its  consent  and 
cession  had  not  been  granted.  By  St.  1933,  c.  290,  the  Commonwealth 
granted  the  same  consent  and  cession  with  respect  to  the  great  ponds 
situated  within  the  reservation,   then  known   as   Fort   Devens   Military 


92  P.D.  12 

Reservation,  and  in  St.  1950,  c.  778  similar  action  was  taken  with  respect 
to  forty-three  acres  of  land  in  the  Town  of  Ayer.  In  1966,  by  St.  1966, 
c.  482,  the  Commonwealth  accepted  retrocession  by  the  United  States  of 
concurrent  jurisdiction  of  3.6  acres  in  the  Town  of  Ayer  located  in  the 
vicinity  of  the  Fort  Devens  Military  Reservation. 

As  a  result  of  these  acts,  the  land  involved  ceased  to  be  part  of  the 
Commonwealth  and  also  ceased  to  be  part  of  the  towns  in  which  said 
land  was  formerly  located.  In  a  case  involving  a  similar  consent  and 
cession  of  land  by  the  Commonwealth  to  the  United  States  for  use  as  a 
veterans'  hospital,  it  was  stated  that  "for  the  purposes  of  this  case,  the 
land  on  which  the  Veterans'  Hospital  was  located  was  not  a  part  of  this 
Commonwealth,  and  neither  our  administrative  officers  and  boards  nor 
our  courts  had  any  jurisdiction  over  it."  Employers'  Liability  Assurance 
Corp.  Ltd.  V.  DiLeo,  298  Mass.  401,  404.  That  holding  is  directly  appli- 
cable to  the  instant  case. 

Accordingly,  the  issue  presented  is  whether  the  Town  of  Ayer  can 
expend  any  funds  to  construct  an  addition  to  a  school  building  located 
on  land  outside  the  town. 

It  is  an  "elementary  principle  that  a  town  is  merely  a  subordinate 
agency  of  State  government  created  for  convenient  administration  and  has 
only  those  powers  which  are  expressly  conferred  by  statute  or  necessarily 
implied  from  those  expressly  conferred  or  from  undoubted  municipal 
rights  or  privilieges."  Atherton  v.  Selectmen  of  Bourne,  337  Mass.  250, 
255-256,  and  cases  cited.  "In  the  expenditure  of  funds  raised  by  taxation 
this  principle  applies  with  special  force,  and  in  making  such  expenditures 
municipalities  have  always  been  rigidly  restricted  to  the  bounds  imposed 
by  law."  Berube  v.  Selectmen  of  Edgartown,  331  Mass.  72,  74,  and  cases 
cited.  Moreover,  it  should  be  kept  in  mind  that  "[i]n  this  Commonwealth 
statutes  as  to  powers  conferred  upon  .  .  .  towns  have  always  been  given 
a  strict  construction."  MacCrae  v.  Selectmen  of  Concord,  296  Mass.  394, 
397;  Adie  v.  Mayor  of  Holyoke,  303  Mass.  295,  299. 

An  examination  of  those  statutes  relating  to  the  corporate  powers  of 
towns  leads  me  to  the  conclusion  that  the  Town  of  Ayer  is  not  authorized 
to  effect  the  proposed  construction.  For  the  purpose  of  this  opinion,  a 
detailed  recitation  of  said  statutes  would  be  neither  necessary  nor  helpful, 
but  it  is  worthy  of  note  that  the  Legislature  has  in  special  cases  specifi- 
cally authorized  expenditures  for  construction  outside  towns.  See,  for 
example,  G.  L.  c.  40,  §  5(35)  (for  establishment,  maintenance  and  oper- 
ation of  public  airports),  and  G.  L.  c.  71,  §§  14-161  (for  regional  school 
districts). 

Moreover,  if  the  town  were  to  use  its  funds  for  the  construction  in 
question,  it  would  in  effect  be  making  a  gift  to  the  United  States,  for  a 
building  once  affixed  to  real  estate  becomes  part  of  the  realty,  unless 
prior  to  construction  there  is  a  written  or  oral  agreement  with  the  owner 
of  the  land  that  the  building  shall  remain  personal  property.  Barnes  v. 
Hosmer,  196  Mass.  323,  324,  and  cases  cited.  I  also  find  nothing  in  the 
statutes  which  would  authorize  such  an  agreement. 

Accordingly,  my  opinion  is  that  without  specific  legislative  authoriza- 
tion the  Town  of  Ayer  may  not  expend  its  funds  for  the  construction  of 


P.D.  12  93 

an  addition  to  a  federally-owned  school  building  located  on  the  Fort 
Devens  Military  Reservation. 

I  am  also  of  the  opinion  that  the  town  may  not  pay  for  such  construc- 
tion on  land  leased  for  a  long  term  by  the  United  States  to  the  town 
without  specific  statutory  authorization.  In  my  opinion,  the  Town  of 
Ayer  has  no  authority  to  enter  into  such  a  lease  for  the  reasons  I  have 
set  forth  above. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  25  January  12,  1970 

DR.  JEROME  MILLER,  Commissioner 
Department  of  Youth  Services 

Dear  Doctor  Miller : 

Your  predecessor,  Mr.  Frank  Maloney,  requested  my  opinion  as  to 
what  action  should  be  taken  with  respect  to  a  claim  made  (pursuant  to 
the  provisions  of  G.  L.  c.  31,  §  43  (h))  by  Pasquale  Prencipe,  Assistant 
Superintendent  of  the  Institute  for  Juvenile  Guidance  at  Bridgewater. 
The  claim  is  in  the  amount  of  eight  hundred  dollars  for  reimbursement 
of  attorneys'  fees  and  costs  incurred  in  proceedings  before  the  Director 
of  Youth  Services  and  the  Civil  Service  Commission  relating  to  disciplin- 
ary action  taken  by  the  Director  against  Mr.  Prencipe.  It  is  my  opinion, 
for  the  reasons  hereinafter  stated,  that  the  claim  must  be  denied. 

Mr.  Prencipe  was  discharged  from  his  position  as  Assistant  Superin- 
tendent by  the  Director  of  Youth  Services  after  a  hearing,  and  he  there- 
after sought  a  hearing  de  novo  before  the  Civil  Service  Commission, 
pursuant  to  the  provisions  of  G.  L.  c.  31,  §  43.  Following  that  second 
hearing,  the  hearing  officer  made  findings  and  conclusions,  and  the  Com- 
mission took  action  thereon.  Sixteen  charges  were  originally  preferred. 
Prior  to  the  consideration  of  the  case  by  the  Commission,  nine  of  the 
charges  were  withdrawn.  Of  the  remaining  seven  charges,  the  Commission 
found  that  six  were  not  sustained  and  the  action  of  the  Director  was  not 
justified.  As  to  the  last  charge,  the  Commission  sustained  the  Director. 
However,  pursuant  to  the  discretionary  power  conferred  on  the  Com- 
mission in  the  last  sentence  of  G.  L.  c.  31,  §  43(b),  the  Commission 
modified  the  penalty  imposed  on  Mr.  Prencipe  from  a  discharge  to  a 
suspension  of  one  month.  The  pertinent  portion  of  G.  L.  c.  31,  §  43(b) 
is  as  follows: 

"...  If  the  commission  find  that  the  action  of  the  appointing 
authority  was  justified,  such  action  shall  be  affirmed;  other- 
wise, it  shall  be  reversed  and  the  person  concerned  shall  be 
returned  to  his  office  or  position  without  loss  of  compensation. 
The  commission  may  also  modify  any  penalty  imposed  by  the 
appointing  authority."    (Emphasis  supplied.) 

The  instant  claim  was  made  pursuant  to  G.  L.  c.  31,  §  43(h)  which 
provides,  in  pertinent  part: 


94  P.D.  12 

"Any  person  holding  office  or  employment  under  permanent 
appointment  in  the  official  or  labor  service  of  the  commonwealth 
.  .  .  who  has  incurred  expense  in  defending  himself  against  an 
unwarranted  discharge,  removal,  suspension,  laying  off,  lowering 
in  rank  or  compensation,  or  abolition  of  his  position,  shall,  if 
he  engages  an  attorney  for  such  defense,  be  reimbursed  for 
such   expense;   provided,    however,    that   the    amount   of   such 
reimbursement  shall  in  no  event  exceed  an  aggregate  sum  of 
nine  hundred  dollars  ..."    (Emphasis  supplied.) 
It  is  clear  from  the  record  before  me  that  the  Civil  Service  Commission 
found  some  disciplinary  action  agamst  Mr.   Prencipe  to  be  warranted, 
although  it  disagreed  with  the  Director  of  Youth  Services  as  to  the  form 
that  action  should  take.    The  Director  discharged  Mr.  Prencipe,  but  the 
Commission  modified  that  action  to  a  one  month  suspension.    While  Mr. 
Prencipe  was  successful  in  over-turning  the  decision  of  the  Director  with 
respect  to  six  of  the  charges  against  him,  he  did  not  prevail  with  respect 
to  the  seventh  charge.    That  fact  is  crucial  to  a  determination  of  the 
question  you  raise. 

In  my  opinion,  the  provisions  of  G.  L.  c.  31,  §  43(h)  apply  only  in 
cases  where  the  decision  of  an  appointing  authority  is  reversed  in  its 
entirety  and  an  employee  is  "returned  to  his  office  or  position  without 
loss  of  compensation."  Such  was  not  the  case  here.  Since  the  Commission 
found  a  suspension  to  be  warranted,  the  reimbursement  permitted  by 
G.  L.  c.  31,  §  43(h)  cannot  occur.  In  my  view,  the  Legislature  intended 
that  the  reimbursement  provided  for  in  G.  L.  c.  31,  §  43(h)  occur  only 
in  those  cases  where  an  employee  emerged  either  from  the  proceeding 
before  the  Commission  or  a  review  proceeding  in  the  District  Court 
acquitted  of  all  charges  against  him. 

In  conclusion,  then,  it  is  my  opinion  that  the  Department  of  Youth 
Services  may  not  reimburse  Pasquale  Prencipe  for  attorneys'  fees  and 
costs  incurred  by  him  in  proceedings  before  the  Director  of  Youth  Serv- 
ices and  the  Civil  Service  Commission. 

Very  truly  yours, 

ROBERT  H.  QUINN 
Attorney  General 

No.  26  February  10,  1970 

HONORABLE  FREYDA  P.  KOPLOW 

Commissioner  of  Banks 

Dear  Commissioner  Koplow: 

You  have  requested  my  opinion  concerning  assessments  for  investiga- 
tions of  licensed  insurance  premium  finance  agencies  under  G.  L.  c.  255C, 
§  6,  as  amended  by  §  3  of  the  Acts  of  1969,  which  provides  in  pertinent 
part: 

"The  commissioner  shall  assess  the  licensee  forty  dollars  per 
day  for  each  man  participating  in  any  such  investigation  or 
twenty  dollars  per  one  thousand  accounts  or  fraction  thereof 
written  by  said  agency,  whichever  is  less." 


P.D.   12  95 

Specifically,  you  ask  the  following  questions: 

"1)  Does  the  sentence  mean  that  I  assess  twenty  dollars  per 
one  thousand  accounts  or  fraction  thereof  per  day  per  man 
or  does  it  mean  that  such  charge  should  be  for  the  total 
investigation  irrespective  of  the  number  of  days  consumed 
and  the  number  of  men  employed? 

"2)  Does  the  phrase  'written  by  said  agency'  mean  written 
during  a  calendar  year,  since  the  date  of  the  previous  in- 
vestigation, or  some  other  period  of  time? 

"3)  Inasmuch  as  many  insurance  premium  finance  agencies  are 
not  licensed  insurance  agents  or  brokers  but  acquire  con- 
tracts by  virtue  of  an  assignment  from  an  agent  or  broker, 
can  the  phrase  'written  by  said  agency'  be  used  as  a  basis 
for  determination  of  the  investigation  charge?" 

Since  the  statute  must  be  construed  as  it  is  written,  (Harry  Alan  Gregg, 
Jr.  Family  Found' n  Inc.  v.  Com'r  of  Corp'ns  &  Tax'n,  330  Mass.  538, 
544),  I  conclude  with  regard  to  Question  No.  1  that  the  assessment  of 
twenty  dollars  per  one  thousand  accounts  or  fraction  thereof  refers  to  the 
total  investigation  irrespective  of  the  number  of  days  consumed  and  the 
number  of  men  employed.  No  other  conclusion  is  possible  if  the  words 
of  the  statute  are  construed,  as  they  must  be,  according  to  their  natural 
import  and  approved  usage  (Johnson  v.  District  Attorney  for  the  Northern 
District,  342  Mass.  212,  215),  and  the  statute  is  not  extended  by  con- 
struction or  enlargement  beyond  its  fair  import.  Mitchell  v.  Mitchell, 
312  Mass.  154,  161.  Accordingly,  if  there  is  an  omission  in  the  statute 
which  is  intentional,  a  substitution  cannot  be  effected;  if  there  is  an 
omission  due  to  inadvertance,  an  attempt  to  supply  it  would  be  tanta- 
mount to  adding  to  the  statute  a  meaning  not  intended  by  the  Legislature. 
Boylston  Water  District  v.  Tahanto  Regional  School  District,  353  Mass. 
81,  84.  Although  this  interpretation  may  result  in  assessments  which  are 
completely  disproportionate  to  the  time  expended  in  investigation  and 
which  compare  unfavorably  to  examination  bank  charges  assessed  under 
G.  L.  c.  1 67,  §  2,  the  statute  is  clear  and  relief  therefrom  can  be  afforded 
only  by  the  Legislature. 

In  order  to  answer  Question  No.  2,  it  is  necessary  for  me  to  refer  to 
the  remaining  part  of  the  amended  statute,  since  all  provisions  of  the 
statute  must  be  so  construed  that  they  can  operate  harmoniously  together. 
McCue  v.  Director  of  Civil  Service,  325  Mass.  605,  611.  General  Laws 
c.  255C,  §  6  states  in  pertinent  part: 

"The  commissioner  may  make  such  investigations  as  he 
deems  necessary  to  determine  whether  any  licensee  or  any  other 
person  has  violated  any  of  the  provisions  of  this  chapter,  or 
whether  any  licensee  has  so  conducted  himself  as  to  justify 
the  revocation  of  his  license  ..." 

Under  the  express  terms  of  §  6,  therefore,  investigations  are  not 
limited  to  a  calendar  year  or  to  any  other  period  of  time.  Moreover, 
since  the  statute  should  be  construed  in  accordance  with  sound  judgment 
and  common  sense,  so  as  to  make  it  an  effective  piece  of  legislation  (Sun 
Oil  Co.  v.  Director  of  the  Division  of  the  Necessaries  of  Life,  340  Mass. 


96  P.D.  12 

235,  238),  an  interpretation  which  would  result  in  an  assessment  for 
only  part  of  the  period  of  time  under  investigation  and  which  would 
impose  an  unequal  burden  on  finance  agencies  should  be  avoided.  An 
intention  to  accomplish  such  a  result  should  not  be  attributed  to  the 
Legislature.  Johnson  v.  Commissioner  of  Public  Safety,  Mass.  Adv.  Sh. 
(1968)  1381,  1385.  In  answering  to  Question  No.  2,  therefore,  I  am 
of  the  opinion  that  the  phrase  "written  by  said  agency"  refers  to  that 
period  of  time  for  which  the  Commissioner  "deems  [it]  necessary"  to 
conduct  an  investigation.  Although  ordinarily  the  investigation  period 
will  extend  back  to  the  time  the  last  investigation  was  completed,  the 
Commissioner  may  "deem  [it]  necessary"  to  conduct  a  new  investigation 
which  would  include  a  period  of  time  involved  in  a  prior  investigation. 
Individual  complaints  concerning  a  particular  company,  for  example, 
might  prompt  such  a  decision. 

I  understand  you  to  ask  in  Question  No.  3  whether  the  phrase  "written 
by  said  agency"  refers  only  to  those  premium  finance  agreements  written 
by  said  agency.  The  statute  states  that  part  of  the  assessment  computa- 
tion shall  be  based  on  the  number  of  "accounts  .  .  .  written  by  said 
agency  ..."  (emphasis  supplied),  and  not  the  number  of  premium 
finance  agreements  written  by  an  agency.  Although  no  definition  of  the 
word  "accounts"  is  provided  by  the  statute,  the  word  must  be  presumed 
to  have  its  ordinary  meaning.  Davey  Bros.,  Inc.  v.  Stop  &  Shop,  Inc., 
351  Mass.  59,  63.  Accordingly,  in  answer  to  Question  No.  3,  I  conclude 
that  the  phrase  "written  by  said  agency"  refers  to  those  records  kept  by 
the  agency  to  record  the  financial  transactions  of  those  insureds  who  have 
entered  into  premium  finance  agreements,  whether  or  not  said  agreements 
were  written  by  the  agency. 

Very  truly  yours, 
ROBERT  H.  QUINN 

Attorney  General 

No.  27  March  2,  1970 

State  Racing  Commission 

Gentlemen: 

You  have  requested  my  opinion  as  to  whether  you  may  approve  a 
refund  of  the  license  fee  paid  and  return  the  bond  filed  by  Berkshire 
Downs,  Inc.  (Berkshire)  in  connection  with  its  application  for  1969 
racing  dates.    You  state  the  following  facts: 

On  January  3,  1969,  Berkshire  filed  with  the  State  Racing  Commission 
(Commission)  applications  for  licenses  to  conduct  a  total  of  twenty-four 
(24)  days  of  running  horse  racing  during  1969.  These  applications  were 
accompanied  by  a  check  for  $14,400  for  the  license  fee,  which  check 
was  deposited  with  the  State  Treasurer  on  January  13,  1969.  After  a 
public  hearing  the  Commission  voted  on  January  29,  1969,  to  grant  to 
Berkshire  five  (5)  licenses  for  a  total  of  twenty-four  (24)  racing  days 
to  commence  July  9,  1969. 

On  June  5,  1969,  the  president  of  Realty  Equity  Suffolk  Downs,  Inc. 
(Suffolk)  advised  the  Commission  that  he  had  just  signed  an  agreement 


P.D.  12  97 

to  purchase  100%  of  Berkshire's  outstanding  stock,  and  requested  a 
conference  with  the  Commission.  Berkshire  filed  a  bond  on  June  9, 
1969,  but  in  view  of  the  fact  that  the  Commission  had  been  informed 
of  the  sale  of  Berkshire's  stock  to  Suffolk,  the  bond  was  not  approved 
by  the  Commission,  and  the  Hcense  certificates  were  not  issued.  The 
requested  conference  between  Suffolk  and  the  Commission  was  held  on 
June  12,  1969,  at  which  time  Suffolk  advised  the  Commission  that  Suffolk 
wanted  to  run  the  twenty-four  (24)  days  originally  allotted  to  Berkshire. 

The  Commission  received  from  Berkshire's  president  on  July  2,  1969, 
a  letter  stating  Berkshire  would  not  hold  any  racing  meeting  in  1969  due 
to  losses  it  had  sustained  in  recent  years.  The  letter  further  stated  that 
Berkshire  was  thereby  withdrawing  and  cancelling  its  racing  applications 
for  1969,  that  Berkshire  would  not  accept  the  grant  or  award  of  its  appli- 
cations, that  no  licenses  had  issued  to  Berkshire,  and  that  Berkshire  would 
not  request  nor  accept  any  such  licenses. 

On  November  14,  1969,  the  Commission  received  a  letter  from 
Berkshire's  counsel  requesting  a  refund  of  the  license  fee  and  return 
of  the  bond. 

You  have  asked  whether  the  Commission  legally  may  approve  Berk- 
shire's request  for  a  refund  of  the  $14,400  paid  by  it  at  the  time  it  filed 
its  applications  for  twenty-four  (24)  days  of  running  horse  racing  in  1969. 

Section  4  of  c.  128A  of  the  General  Laws,  to  which  you  refer  auth- 
orizes the  Commission  in  certain  prescribed  circumstances  to  approve 
the  refund  of  a  license  fee  if  "  it  should  become  impossible  or  impracti- 
cable to  conduct  racing  upon  any  day  or  successive  days  specified  in  a 
license  issued  by  the  commission  ..."  (Emphasis  supplied.)  G.  L. 
c.  128A,  §  3,  para.  2(3).  As  indicated  by  the  italicized  words,  this 
section  applies  only  where  a  license  has  been  issued.  None  having  been 
issued  here,  section  4  does  not  apply. 

The  license  fee  paid  by  Berkshire  was  in  the  nature  of  an  excise 
exacted  for  the  privilege  of  conducting  a  twenty-four  (24)  day  running 
horse  racing  meeting.  Boston  v.  Scliafjer,  9  Pick.  415,  419.  Once  the 
Commission  has  effectively  conferred  upon  an  applicant  the  privilege  of 
conducting  a  racing  meeting,  it  cannot  refund  the  fee  paid  for  that  privilege, 
even  if  not  exercised,  except  in  the  Hmited  circumstances  set  forth  in 
G.  L.  c.  128 A,  §  4,  which,  as  shown  above,  is  inapplicable  here.  Cook 
V.  Boston,  9  Allen  393,  394.  6  Op.  Atty.  Gen.  Ill  (1921).  Although 
technically  a  racing  license  is  "granted"  when  the  Commission  acts 
favorably  upon  an  application  after  a  public  hearing  {Berkshire  Downs, 
Inc.  V.  State  Racing  Commn.,  350  Mass.  695,  699),  the  license  is  not  then 
effective.  It  cannot  be  exercised  until  the  Commission  actually  issues 
the  license  by  delivering  to  the  applicant  the  certificate  of  license.  Com- 
monwealth V.  Welch,  144  Mass.  356,  357;  Commonwealth  v.  Cauley,  150 
Mass.  272,  275.  Op.  Atty.  Gen.  29,  30-32  (1939).  Here,  then,  as  in 
the  case  of  liquor  licenses,  the  issuance  of  which  is  governed  by  a  similar 
statutory  procedure,  the  licensee  is  not  barred  from  obtaining  a  refund 
unless  the  Commission  has  formally  issued  a  license  to  it.  See  Emery  v. 
Lowell,  127  Mass.  138,  141.  McGinnis  v.  Medway,  176  Mass.  67,  71. 
Taber  v.  New  Bedford,  177  Mass.  197,  198-199.  Brown  v.  Nahant,  213 
Mass.  271,  276.    No  license  having  been  issued  to  Berkshire,  it  never 


98  P.D.  12 

had  the  privilege  of  conducting  a  running  horse  racing  meeting  in  1969. 
Accordingly,  it  is  my  opinion  that  the  fee  paid  for  that  privilege  may 
properly  be  refunded. 

You  have  also  asked  whether  Berkshire's  bond  filed  in  connection  with 
its  1969  racing  license  applications  may  properly  be  returned.  A  bond 
is  necessary  only  if  a  license  is  being  issued.  G.  L.  c.  128 A,  §  3.  No 
license  having  been  issued  to  Berkshire,  it  is  my  further  opinion  that  it 
is  proper  to  return  the  bond. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  28  April  24,  1970 

HONORABLE  PHILIP  A.  QUINN 

Senator,  Worcester  and  Hampden  District 

Dear  Senator  Quirm: 

You  have  requested  my  opinion  concerning  a  reorganization  in  the 
Department  of  Public  Health.  Specifically,  you  have  asked  whether  the 
Commissioner  of  Public  Health  is  legally  empowered  to  combine  the 
Food  and  Drugs  Division  into  the  structure  of  the  Division  of  Environ- 
mental Health  and  to  appoint  a  divisional  director  to  serve  under  him 
and  over  the  director  of  the  Division  of  Food  and  Drugs.  Subject  to  the 
limitations  that  will  hereinafter  appear,  it  is  my  opinion  that  the  Com- 
missioner is  authorized  to  effect  such  a  reorganization. 

Pursuant  to  G.  L.  c.  17,  §  1,  the  Department  consists  "of  a  commis- 
sioner of  public  health  and  a  public  health  council."  The  Legislature  has 
determined  that  the  Public  Health  Council  "shall  have  no  administrative 
or  executive  functions."  G.  L.  c.  HI,  §  3.  Instead,  these  powers  have 
been  entrusted  to  the  Commissioner  under  G.  L.  c.  17,  §  2,  which  pro- 
vides that  he  "shall  be  the  executive  and  administrative  head  of  the 
department."  Moreover,  G.  L.  c.  11 1,  §  2  provides  that  the  Commissioner 
"shall  administer  the  laws  relative  to  health  and  sanitation  and  the  regu- 
lations of  the  department  ..." 

It  is  well  established  that  where  a  grant  of  power  is  expressly  conferred 
by  statute  upon  an  administrative  officer  or  where  a  specific  duty  is  im- 
posed upon  him,  the  officer,  in  the  absence  of  some  statutory  limitation, 
has  the  authority  to  employ  all  ordinary  means  reasonably  necessary  for 
the  full  exercise  of  the  power  conferred  and  for  the  faithful  performance 
of  the  duty  imposed.  Bureau  of  Old  Age  Assitancc  of  Natick  v.  Com- 
missioner of  Public  Welfare,  326  Mass.  121,  124,  and  cases  cited.  Part 
of  the  express  power  granted  the  Commissioner  is  the  exclusive  power  to 
administer  the  Department.  "The  word  '  administer'  is  one  susceptible  of 
a  very  broad  interpretation.  In  Fluet  v.  McCabe,  299  Mass.  173,  at  page 
179,  it  was  said  that  '[t]o  "manage"  is  to  control  and  direct,  to  administer, 
to  take  charge  of  .  .  .  '  "  (emphasis  supplied).  Costonis  v.  Medford 
Housing  Authority,  343  Mass.   108,  114. 


P.D.  12  99 

The  executive  and  administrative  power  of  the  Commissioner,  however, 
is  hmited  by  G.  L.  c.  17,  §  4,  which  provides: 

"There  shall  be  in  the  department  a  division  of  food  and 
drugs,  and  such  other  divisions  as  the  commissioner,  with  the 
approval  of  the  pubhc  health  council,  may  from  time  to  time 
determine.  The  commissioner  shall,  subject  to  the  approval  of 
the  public  health  council,  appoint  a  director,  who  shall  take 
charge  of  each  division.  Every  such  director  shall  be  subject  to 
chapter  thirty-one  .  .  . 

"There  shall  be  within  the  division  of  food   and  drugs   a 
furniture  and  bedding  inspection  section,  a  drugs  control  sec- 
tion, a  poultry  inspection  section,  a  fish  inspection  section  and 
such  other  sections  as  the  director,  with  the  approval  of  the 
department,  may  from  time  to   time   determine." 
Implicit  in  this  section  is  recognition  by  the  Legislature  that  minimal 
protection  of  the  public  welfare  required  the  establishment  of  a  food  and 
drugs  division,  including  therein  certain  inspection  sections,  whose  exist- 
ence was  to  be  independent  of  the  Commissioner's  administrative  dis- 
cretion.   "The  word  'shall'  in  a  statute  is  commonly  a  word  of  imperative 
obligation  and  is  inconsistent  with  the  idea  of  discretion."    Johnson  v. 
District  Attorney  for  the  Northern  District,  342  Mass.  212,  215.    A  re- 
organization could  not,  therefore,  eliminate  the  existence  of  the  Division 
of  Food  and  Drugs. 

However,  since  you  have  stated  that  "the  Food  and  Drugts]  Division 
will  retain  its  [sic]  identity,"  and  will  apparently  continue  to  function  as 
a  separate  division,  the  legislative  mandate  will  be  satisfied.  Moreover, 
the  appointment  of  another  divisional  director  as  an  apparent  administra- 
tive conduit  between  the  Commissioner  and  the  director  of  the  Division 
of  Food  and  Drugs  appears  to  lie  well  within  the  administrative  power  of 
the  Commissioner,  provided,  of  course,  that  the  former  director  does  not 
interfere  with  the  latter  director's  authority  and  duty  to  "take  charge"  of 
his  division  under  G.  L.  c.  17,  §  4.  Certainly  nothing  in  the  statutory 
scheme  grants  the  director  of  the  Division  of  Food  and  Drugs  an  express 
or  implied  right  to  be  a  direct  subordinate  of  the  Commissioner. 

I  therefore  conclude  that  G.  L.  c.  17,  §  2  and  G.  L.  c.  Ill,  §  2  are 
sufficiently  comprehensive  to  indicate  a  legislative  intent  to  confer  upon 
the  Commissioner  authority  to  institute  the  reorganization  to  which  you 
have  referred.  Inasmuch  as  the  reorganization  does  not  appear  to  involve 
the  establishment  of  a  new  division  or  the  appointment  of  a  new  director 
of  a  division,  the  approval  of  the  public  health  council  would  not  be 
required.  See  G.  L.  c.  17,  §  4.  Nor  is  the  implied  authority  conferred 
by  the  Legislature  an  unconstitutional  delegation  of  power.  That  the 
Legislature  cannot  under  our  Constitution  delegate  its  general  power  to 
make  laws  is  so  well  settled  that  a  citation  of  authorities  is  unnecessary. 
"But  one  of  the  exceptions  to  or  qualifications  of  that  doctrine  is  that 
the  Legislature  may  delegate  to  ...  an  individual  officer  the  v/orking 
out  of  the  details  of  a  policy  adopted  by  the  Legislature."  Commonwealth 
V.  Diaz,  326  Mass.  525,  527,  and  cases  cited.  Accordingly,  "[t]he  Legis- 
lature need  not  enumerate  nor  specify  definitely  and  precisely,  each  and 
every  ancillary  act  that  may  be  involved  in  the  discharge  of  an  official 


100  P.D.  12 

duty.  It  is  enough  for  the  Legislature  to  impose  the  duty  to  be  performed 
within  a  prescribed  field  for  a  designated  end,  leaving  to  the  .  .  .  [officer's] 
discretion  the  selection  of  the  appropriate  methods  and  means  and  the 
other  administrative  details  to  be  employed  in  accomplishing  the  statutory 
purpose."  Scannell  v.  State  Ballot  Law  Commission,  324  Mass.  494,  501, 
and  cases  cited.  The  "policy  adopted  by  the  Legislature"  and  the  "pre- 
scribed field"  limiting  the  Commissioner's  duties  clearly  appear  in  G.  L. 
c.  Ill,  §5,  which  defines  in  broad  terms  the  powers  and  duties  of  the 
Department.  The  reorganization,  the  object  of  which  is  the  more  eff'ec- 
tive  administration  of  the  Department  of  Public  Health,  is  clearly  per- 
missible as  an  aid  in  fulfilling  the  statutory  duties  of  the  Department. 

Very  truly  yours, 

ROBERT  H.  QUINN 
Attorney  General 

No.  29  May  11,  1970 

MR.  GEORGE  J.  COOGAN 

Chairman,  Gas  Regulatory  Board 
Department  of  Public  Utiilties 

Dear  Mr.  Coogan: 

You  have  requested  my  opinion  whether  a  city  or  town  may  promulgate 
rules  and  regulations  pertaining  to  gas  fitting  or  installation,  which  rules 
and  regulations  provide  that  gas  installations  may  be  approved  or  in- 
spected by  persons  other  than  a  duly  appointed  gas  inspector  who  is 
appointed  pursuant  to  G.  L.  c.  143,  §  30.  You  state  that  the  City  of 
Lynn  has  adopted  as  part  of  its  building  code  the  following  provision 
which  has  been  applied  to  gas  fitting: 

"A  boiler  furnace  or  heating  appliance  shall  not  be  located  or 
installed  in  any  part  of  a  building  other  than  a  basement  boiler 
room,  without  first  being  approved  by  the  inspector  of  build- 
ings."   Section  220  (2-C),  Building  Code  of  the  City  of  Lynn, 
adopted  Sept.   15,   1964. 
It  is  my  opinion,  for  the  reasons  hereinafter  stated,  that  the  above-quoted 
provision  of  the  Lynn  Building  Code,  insofar  as  it  pertains  to  gas  appli- 
ances, is  invalid  and  beyond  the  power  of  the  City  to  adopt. 

In  1959,  the  General  Court  authorized  the  Department  of  Public 
Utilities  to  make  an  investigation  and  study  "relative  to  the  establishment 
of  a  state-wide  safety  code  covering  the  installation  of  gas  facilities  within 
buildings  ..."  Resolves  of  1959,  c.  39.  Pursuant  to  the  directions  of 
the  resolve,  the  Department  completed  a  study  and  drafted  a  detailed 
safety  code  which  was  submitted  in  due  course  to  the  General  Court. 
The  Department's  report  accompanying  the  code  stated: 

"[T]he  dire  need  for  state-wide  adoption  of  the  technical  appli- 
cation of  this  code  as  outlined  in  Parts  2-7  inclusive,  transcends 
the  jurisdictional  conflicts  between  the  various  interested  organi- 
zations, and  it  should  be  adopted  as  submitted."  Special  Report 
of  the  Department  of  Public  Utilities  Under  C.  39,  Resolves  of 
1959,  Senate  #490  of  1960,  p.  7. 


P.D.   12  IDl 

The  General  Court's  response  to  the  report  of  the  Department  took 
the  form  of  the  enactment  of  St.  1960,  c.  737.  That  Act  established  a 
Gas  Regulatory  Board  in  the  Department  of  Public  Utilities,  which  board 
was  empowered  to  make 

"rules  and  regulations  relative  to  gas  fitting  in  buildings  through- 
out the  commonwealth,  which  rules  and  reguations  shall  be 
reasonable,  uniform,  based  on  generally  accepted  standards  of 
engineering  practice,  and  designed  to  prevent  fire,  explosion,  in- 
jury and  death  ..."  G.  L.  c.  25,  §  12H,  as  inserted  by  St. 
1960,  c.  737,  §1. 

The  Act  further  provided  for  the  appointment  of  a  local  gas  inspector  in 
each  town  and  city  whose  duty  "shall  be  the  enforcement  of  the  rules 
and  regulations  adopted  by  the  board  ..."  G.  L.  c.  143,  §  30,  as 
inserted  by  St.  1960,  c.  737,  §  2.    Finally,  the  Act  provided: 

"All  by-laws  and  ordinances  of  cities  and  towns  relating  to 
gas  fitting  within  buildings  are  hereby  annulled."  St.  1960,  c. 
737,  §  4. 

In  approving  St.  1960,  c.  737,  the  Governor  attached  an  emergency 
preamble,  declaring  the  act  to  be  an  emergency  law: 

"Postponement  of  the  operation  of  this  act  for  ninety  days 
would  defeat  its  purpose  which  is  to  establish  forthwith  uni- 
form rules  and  regulations  to  govern  gas  fitting  in  buildings 
throughout  the  commonwealth." 

In  my  opinion,  the  legislative  history  of  St.  1960,  c.  737  indicates  a 
clear  intent  on  the  part  of  the  General  Court  that  there  be  uniform  rules 
and  regulations  with  respect  to  gas  fitting.  In  approving  the  act  and  de- 
claring it  to  be  an  emergency  law,  the  Governor  stressed  the  need  for 
uniformity.  The  provision  in  the  act  annulling  by-laws  and  ordinances 
of  cities  and  towns  was  designed  to  carry  out  the  intent  of  the  General 
Court  in  this  regard. 

The  Gas  Regulatory  Board  has  now  carried  out  its  statutory  mandate 
to  adopt  rules  and  regulations  and  has  promulgated  the  "Massachusetts 
Code  for  Installation  of  Gas  Appliances  and  Gas  Piping."  Sections  4.8.1 
and  4.8.2  of  that  Code  permit  the  installation  of  recessed  gas  heating 
appliances  in  the  first  floor  or  above  in  compliance  with  the  manufacturer's 
instructions  and  those  provisions  of  the  code.  The  provision  of  the  Lynn 
Building  Code  to  which  you  refer  places  a  further  restriction  on  the 
placement  of  such  appliances  and  makes  placement  subject  to  the  approval 
of  the  inspector  of  buildings  of  the  City  of  Lynn  if  the  appliance  is  placed 
anywhere  other  than  "a  basement  boiler  room." 

The  City's  requirement  clearly  invades  an  area  reserved  by  the  General 
Court  to  the  Gas  Regulatory  Board,  and  the  City's  requirement  must 
therefore  fall.  Such  a  provision  markedly  detracts  from  the  mandate  of 
the  General  Court  that  rules  and  regulations  in  the  area  of  gas  fitting  be 
uniform,  and,  in  view  of  the  pre-emption  of  the  field  by  the  Legislature 
and  the  grant  of  jurisdiction  to  the  Gas  Regulatory  Board,  the  City's  re- 
quirement is  invalid  and  unenforceable  insofar  as  it  applies  to  gas 
appliances. 


102  P.D.  12 

In  conclusion,  then,  it  is  my  opinion  that  a  city  or  town  may  not 
adopt  as  a  part  of  its  building  code  or  otherwise  rules  or  regulations 
which  pertain  to  gas  fitting  or  installation  and  provide  for  inspection  of 
gas  installations  by  persons  other  than  a  duly  appointed  gas  inspector. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  30  May  26,  1970 

MR.  EDMUND  H.  STONE 

Executive  Secretary 
Rate  Setting  Commission 
Boston,  Massachusetts  021 16 

Dear  Mr.  Stone: 

Your  Commission  has  requested  my  opinion  with  respect  to  the  "rate 
freeze"  provisions  of  St.  1969,  c.  800.  That  Act,  entitled  "An  Act  to 
EstabUsh  A  Program  of  Medical  Care  and  Assistance  For  Certain  Resi- 
dents of  the  Commonwealth"  inserted  a  new  chapter  118E  in  the  General 
Laws,  and  provides  for  a  comprehensive  program  of  medical  assistance 
for  eligible  persons  "whose  income  and  resources  are  insufficient  to  meet 
the  costs  of  necessary  medical  services."  G.  L.  c.  USE,  §  5.  The  program 
is  to  be  administered  in  conformity  with  Title  XIX  of  the  Federal  Social 
Security  Act  which  provides  for  grants-in-aid  to  the  Commonwealth  to 
carry  out  the  purposes  of  the  program. 

Grants  from  the  Federal  government  to  assist  the  Commonwealth  in 
providing  for  medical  assitance  are  not  new,  however.  As  you  point  out 
in  your  letter,  a  state  plan  for  medical  assistance  has  functioned  in  this 
Commonwealth  since  1966,  and  legislation  enacted  in  1965  authorized 
the  Commissioners  of  Public  Welfare  and  Public  Health  to  expend  funds 
received  from  the  Federal  government  pursuant  to  Title  XIX  without 
appropriation.   St.  1965,  c.  874. 

Your  questions  concern  section  6  of  the  Act,  which  provides: 
"Notwithstanding  the  provisions  of  any  general  or  special  law 
to  the  contrary,  the  fee  schedules  in  effect  on  January  1,  1969 
for  medical  care  and  assistance  provided  under  the  state  plan, 
adopted  in  accordance  with  the  provisions  of  Executive  Order 
49,  dated  January  21,  1966,  and  pursuant  to  and  in  conformity 
with  the  provisions  of  Tide  XIX  of  the  Social  Security  Act 
(P.L.  89-97),  shall  continue  in  effect  until  June  30,  1970,  in- 
sofar as  such  action  does  not  violate  federal  law." 
Specifically,  you  ask: 

1.  "Does  St.  1969,  c.  800,  s.  6  require  that  the  fee  schedules 
applicable  to  intermediate  care  facilities  and  rest  homes 
effective  January  1,  1969,  be  continued  in  effect  through 
June  30,  1970? 

2.  "Does  St.  1969,  c.  800,  s.  6  require  that  the  American 
Druggist  Blue  Book  published  in  March,  1968,  form  the 
basis  of  payment  to  pharmacists  through  June  30,  1970? 


P.D.   12  103 

3.  "Which  of  the  following  does  St.  1969,  c.  800,  s.  6  require 
to  continue  in  effect  through  June  30,  1970  [for  out-patient 
hospital  care  rates]: 

(a)  the  percentage  of  billed  charges  as  appearing  in  Fee  Sched- 
ule II  and  as  applied  to  current  charges;  or 

(b)  the  percentage  of  billed  charges  as  appearing  in  Fee  Sched- 
ule II  and  as  applied  to  charges  for  services  as  they  would 
have  been  billed  on  January  1,  1969?" 

I  will  consider  your  questions  seriatim. 

I.  Your  first  question  concerns  that  portion  of  G.  L.  c.  118E,  §  6 
which  provides  that  "[t]he  department  [of  public  welfare]  shall  provide 
financial  assistance  for  .  .  .  skilled  nursing  home  services  for  individuals 
twenty-one  years  of  age  or  over  ..."  The  Commonwealth  receives  funds 
from  the  Federal  government  under  Title  XIX  to  enable  it  to  provide 
assistance  for  such  services.  Title  XIX  (P.L.  89-97),  §  1905(a)(4). 
You  state  that  the  Department  of  Public  Health  sets  standards  for  nurs- 
ing home  care  and  that  the  Department  currently  confers  on  certain 
nursing  homes  the  designation  "skilled  home"  on  the  basis  of  standards 
set  forth  in  Federal  and  state  regulations.  You  further  inform  me  that  as 
of  November  1,  1969,  less  than  half  the  nursing  homes  in  the  Common- 
wealth have  been  so  classified.  There  are,  therefore,  many  persons  re- 
ceiving assistance  who  are  patients  in  facilities  designated  "intermediate 
care  facilities"  and  "rest  homes".  Payments  to  these  latter  facilities  are 
made  not  pursuant  to  G.  L.  c.  118E,  the  medical  assistance  program  but 
pursuant  to  the  statutes  pertaining  to  old  age  assistance  (G.  L.  c.  118), 
disability  assitance  (G.  L.  c.  118D),  and  aid  to  the  blind  (G.  L.  c.  6, 
§§  129-150).  The  Federal  government's  participation  is  authorized  by 
Tide  XI  of  the  Social  Security  Act. 

Your  question  thus  reduces  itself  to  whether  the  Rate  Setting  Com- 
mission may  set  rates  for  "intermediate  care  facilities"  and  "rest  homes" 
pursuant  to  the  statutory  grant  of  authority  found  in  G.  L.  c.  7,  §  30L, 
or  whether,  in  the  light  of  St.  1969,  c.  800,  §  6,  the  Commission  is  pro- 
hibited from  setting  rates  for  such  facilities  until  June  30,  1970.  It  is 
my  opinion  that  the  provisions  of  St.  1969,  c.  800,  §  6  do  not  apply  to 
the  setting  of  rates  for  "intermediate  care  facilities"  and  "rest  homes,"  and 
that  the  Commission  is  now  free  to  set  rates  for  such  facilities. 

St.  1969,  c.  800,  §  6,  by  its  terms,  applies  only  to  fee  schedules  "for 
medical  care  and  assistance  provided  under  the  state  plan,  adopted  in 
accordance  with  the  provisions  of  Executive  Order  49,  dated  January  21, 
1966,  and  pursuant  to  and  in  conformity  with  the  provisions  of  Title  XIX 
of  the  Social  Security  Act  ..."  Fee  schedules  for  "intermediate  care 
facihties"  and  "rest  homes"  are  not  set  pursuant  to  the  "state  plan"* 
referred  in  St.  1969,  c.  800,  §  6  but  pursuant  to  the  Commission's  auth- 
ority found  in  G.  L.  c.  7,  §  30L.  The  setting  of  rates  for  such  facilities 
is  designed  to  implement  the  provisions  of  G.  L.  c.  118,  118D,  and  c.  6, 
as  identified  supra.    Federal  participation,  as  I  have  noted,  occurs  not  as 

*The  "state  plan",  more  properly  known  as  the  state  plan  for  medical  assistance,  has  been  in 
existence  since  1966  as  required  by  Title  XIX  of  the  Federal  Social  Security  Act,  as  I  have  noted 
supra,  and  its  provisions  were  continued  by  St.  1969,  c.  800,  §  8,  in  so  far  as  they  were  con- 
sistent with  Title  XIX. 


104  P.D.   12 

a  result  of  the  provisions  of  Title  XIX  but  rather  from  the  provisions 
of  Title  XL 

II.  Your  second  question  requires  a  determination  of  the  proper  fee 
schedule  applicable  to  the  purchase  of  drugs  for  public  assistance  recipi- 
ents. The  fee  schedule  in  effect  on  January  1,  1969  provided  only  that 
"[t]he  American  Druggist  Blue  Book,  hereinafter  referred  to  as  the  Blue 
Book,  shall  be  the  official  reference  book  for  pricing  ..."  Fee  Schedule 
XIV,  Massachusetts  Public  Assistance  Policy  Manual,  Chapter  VII.  You 
inform  me  that  the  Blue  Book  is  published  each  March,  so  that  the  Blue 
Book  in  use  on  January  1,  1969  was  published  in  March,  1968.  Your 
question  is,  then,  whether  the  March,  1968  Blue  Book  prices  are  to  be 
continued  until  June  30,  1970,  or  whether  the  prices  in  the  March,  1969 
Blue  Book  control  after  the  latter's  publication. 

It  is  my  opinion  that  the  prices  found  in  the  March,  1968  Blue  Book 
continue  in  effect  until  June  30,  1970,  nothwithstanding  the  fact  that  a 
new  Blue  Book  was  published  in  March,  1969.  St.  1969,  c.  800  §  6 
states  that  "the  fee  schedules  in  effect  on  January  1,  1969"  shall  remain 
in  effect  until  June  30,  1970.  There  is  no  question  but  that  the  prices 
found  in  the  March,  1968  Blue  Book  were  in  effect  on  January  1,  1969. 
The  intent  of  the  Legislature,  in  my  opinion,  was  to  continue  the  March, 

1968  prices  in  effect  and  not  to  permit  the  substitution  of  other  prices 
as  a  result  of  a  new  edition  of  the  Blue  Book  subsequent  to  the  enact- 
ment of  the  statute. 

It  is  well  settled  that  statutes  are  to  be  accorded  their  full  meaning, 
and  no  words  are  to  be  regarded  as  surplusage.  Commonwealth  v.  Woods 
Hole,  Martha's  Vineyard  &  Nantucket  S.S.  Authy.,  352  Mass.  617,  618. 
Since  St.  1969,  c.  800,  §  6  states  that  "the  fee  schedules  in  effect  on 
January  1,  1969  ..."  shall  remain  in  effect  until  June  30,  1970,  the 
Legislature  must  have  meant  that  the  prices  being  charged  on  January  1, 

1969  would  continue  in  effect  until  June  30,  1970  without  change.  Even 
if  St.  1969,  c.  800,  §  6  was  susceptible  of  the  interpretation  that  prices 
for  drugs  might  change  as  a  result  of  a  new  edition  of  the  Blue  Book, 
that  interpretation  must  be  avoided  because  it  would  defeat  the  legislative 
purpose  of  freezing  rates  and  charges  as  they  existed  on  January  1,  1969. 
See  Lehan  v.  North  Main  Street  Garage,  Inc.,  312  Mass.  547,  550. 

III.  Your  third  question  requires  a  determination  of  the  rates  for 
out-patient  hospital  care  to  be  continued  in  effect  until  June  30,  1970. 
You  state  that  the  fee  schedule  for  out-patient  hospital  care  appears  in 
the  Massachusetts  Public  Assistance  Policy  Manual  as  Fee  Schedule  II, 
"Hospitalization".  That  schedule  shows  the  rates  for  out-patient  hospital 
care  as  a  percentage  of  billed  charges  for  each  hospital  included  in  the 
schedule.  You  further  advise  me  that  the  schedule  was  established  pur- 
suant to  paragraph  12  of  the  Commission's  rules  and  regulations  with 
respect  to  determination  of  rates  of  payment  to  hospitals  adopted  under 
the  authority  of  G.  L.  c.  7,  §  30L.  Since  the  schedule  in  effect  on  Janu- 
ary 1,  1969  showed  the  rate  to  be  charged  for  out-patient  hospital  care 
in  each  hospital  as  a  percentage  of  billed  charges,  your  question  is 
whether  the  rates  to  be  continued  are  based  ( 1 )  on  current  billed  charges 
or  (2)  billed  charges  as  those  charges  would  have  been  billed  on  January 
1,  1969. 


P.D.  12  105 

It  is  my  opinion  that  the  rates  to  be  continued  in  effect  until  June  30, 
1970  are  rates  based  on  billed  charges  as  those  charges  would  have  been 
billed  on  January  1,  1969.  The  reasoning  underlying  my  answer  to  this 
question  is  similar  to  that  underlying  my  answer  to  your  second  question, 
and,  briefly  stated,  it  is  that  the  Legislature  intended  to  freeze  rates  as 
they  stood  on  January  1,  1969.  If  the  Legislature  had  intended  to  permit 
rates  to  change  as  a  result  of  increasing  charges  for  out-patient  hospital 
care,  it  is  my  opinion  that  the  statute  would  have  been  drafted  differently 
to  reflect  that  intent. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  31  May  27,  1970 

HIS  EXCELLENCY  FRANCIS  W.  SARGENT 
Governor  of  the  Commonwealth 

Dear  Governor  Sargent: 

You  have  requested  my  opinion  as  to  the  constitutionality  of  a  pro- 
posed statute  which  would  require  the  compulsory  recital  of  either  the 
"Pledge  of  Allegiance  to  the  Flag,"  together  with  a  salute  to  the  flag,  or 
a  designated  portion  of  the  Declaration  of  Independence  in  the  public 
schools  of  the  Commonwealth.  The  bill  passed  by  the  General  Court  is 
H.  5385  and  would  amend  General  Laws,  chapter  71,  section  69  by 
striking  out  the  fourth,  fifth  and  sixth  sentences  thereof  and  inserting  the 
following  language: 

"Each  teacher  shall  cause  the  pupils  under  his  charge  to 
recite  each  day  at  said  opening  exercise,  in  unison  with  him, 
either  the  'Pledge  of  Allegiance  to  the  Flag',  while  saluting  the 
flag,  or  the  following  portions  of  the  Declaration  of  Independ- 
ance,  to  wit:  'We  hold  these  truths  to  be  self-evident,  that  all 
men  are  created  equal,  that  they  are  endowed  by  their  Creator 
with  certain  unalienable  Rights,  that  among  these  are  Life, 
Liberty  and  the  pursuit  of  Happiness.  And  for  the  support  of 
this  Declaration,  with  a  firm  reliance  on  the  Protection  of 
Divine  Providence,  we  mutually  pledge  to  each  other  our  Lives, 
our  Fortunes  and  our  sacred  Honor'.  Failure  for  a  period  of 
five  consecutive  days  by  the  principal  or  teacher  in  charge  of 
a  school,  equipped  as  aforesaid  to  display  the  flag  as  above 
required  or  to  salute  the  flag  and  recite  said  pledge  or  said 
portions  of  the  Declaration  of  Independence,  or  to  cause  the 
pupils  under  his  charge  to  do  so,  shall  be  punished  for  every 
such  day  by  a  fine  of  not  more  than  five  dollars." 

First,  I  note  that  the  language  of  H.  5385  is  similar  in  all  respects, 
except  for  the  addition  of  the  provision  pertaining  to  the  Declaration  of 
Independence,  to  the  language  of  H.  481  of  1965.  In  response  to  a 
request  for  an  opinion  from  the  Senate  with  respect  to  the  constitution- 
ality of  H.  481,  the  then  Attorney  General,  Edward  W.  Brooke,  concluded: 


106  p.D.  12 

"It  is  my  opinion  that  to  the  extent  such  a  statute  would 
require  school  children  to  recite  the  pledge,  it  would  be  un- 
constitutional and  void.  TTie  question  of  the  validity  of  such 
a  law  was  adjudicated  over  twenty  years  ago  in  West  Virginia 
State  Board  of  Education  v.  Barnette,  319  U.S.  624  (1943). 
The  holding  of  that  case  is  clear: 

'We  think  the  action  of  the  local  authorities  in  compelling 
the  flag  salute  and  pledge  transcends  constitutional  limitations 
on  their  power  and  invades  the  sphere  of  intellect  and  spirit 
which  it  is  the  purpose  of  the  First  Amendment  to  our  Consti- 
tution (whose  principles  are  made  applicable  to  the  state 
through  the  Fourteenth  Amendment)  to  reserve  from  all  official 
control.'   Id.  at  642. 

"The  factual  distinction  between  the  law  involved  in  Barnette 
and  the  one  to  which  your  question  relates  are  insignificant. 
The  principles  enunciated  in  Barnette  apply  equally  to  both. 
Nothing  which  has  intervened  since  that  decision  has  weakened 
or  cast  doubt  upon  the  continuing  vitality  of  these  principles. 

"It  is,  accordingly,  my  considered  judgment  that  the  portion 
of  the  proposed  statute  set  forth  above  which  requires  public 
school  children  to  recite  each  morning  the  pledge  of  allegiance 
to  the  flag,  and  which  imposes  criminal  penalties  for  failure  so 
to  do,  is  beyond  the  power  of  the  Legislature  to  enact.  If 
enacted,  such  a  statute  would  be  unconstitutional  and  void." 

Attorney  General  Brooke's  opinion  was  rendered  in  1965.  Since  that 
date  there  have  been  no  intervening  decisions  or  constitutional  amend- 
ments which  would  allow  a  change  in  the  result.  I  therefore  conclude 
that  H.  5385  would,  if  enacted,  be  unconstitutional.  The  fact  that  the 
bill  permits  an  option  of  reciting  the  pledge  or  a  portion  of  the  Declara- 
tion of  Independence  does  not  alter  this  conclusion.  It  is  the  compulsory 
recitation  requirement  which  renders  the  bill  unconstitutional.  West 
Virginia  State  Board  of  Education  v.  Barnette,  319  U.S.  at  633. 

You  have  asked  the  further  question  whether  H.  5385  "remove[s]  from 
Massachusetts  law  the  requirement  that  each  classroom  display  the 
American  Flag?"  St.  1969,  c.  77  amended  G.  L.  c.  71,  §  69  by  inserting 
therein  a  sentence,  which  became  the  fifth  sentence  of  the  section,  as 
follows:  "A  flag  shall  be  displayed  in  each  classroom  in  each  such  school- 
house."  H.  5385  would  amend  the  section  by  striking  out  that  sentence, 
as  well  as  the  sentences  immediately  preceding  and  following  it,  and  no 
comparable  provision  is  inserted  in  lieu  thereof.  I  therefore  conclude 
that  the  requirement  that  a  flag  be  displayed  in  each  classroom  would  be 
repealed  by  H.  5385. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 


P.D.  12  107 

No.  32  June  1,  1970 

DR.  RICHARD  M.  MILLARD,  Chancellor 
Board  of  Higher  Education 

Dear  Doctor  Millard: 

You  have  requested,  on  behalf  of  the  Commonwealth's  Division  of 
State  Colleges,  an  opinion  with  respect  to  educational  leaves  for  non- 
teaching  professional  staff  members  of  state  colleges.  You  have  informed 
me  that  one  Robert  H.  Marsh,  a  professional  non-teaching  member  of 
the  staff  of  the  Framingham  State  College  applied  to  the  Director  of 
Personnel  and  Standardization  for  an  educational  leave  under  the  terms 
of  the  Director's  Policy  No.  131-68.  In  response,  the  Director  determined 
that  an  educational  leave  under  that  policy  was  not  possible  for  a  profes- 
sional person  serving  under  a  governing  board  of  a  state  institution  of 
higher  learning. 

Under  the  circumstances,  you  have  posed  the  following  questions  for 
resolution: 

"1.  Is  the  application  of  Policy  No.  131-68  by  the  Director  of 
Personnel  and  Standardization  to  Mr.  Marsh's  case  correct 
in  the  light  of  the  fact  that  Mr.  Marsh  is  a  state  employee 
and  is  therefore  entitled  to  such  benefits  as  are  accrued  to 
all  other  state  employees? 

"2.  Can  the  Board  of  Trustees  of  State  Colleges  under  the 
powers  granted  to  them  under  Section  1  of  G.  L.  Chapter 
73  and  under  Section  16  of  the  same  chapter  adopt  a 
policy  which  would  permit  the  gi'anting  to  a  non-teaching 
professional  staff  member  of  the  Division  of  State  Colleges 
or  of  one  of  the  colleges  ...  an  educational  leave  of 
absence  with  pay  under  much  the  same  terms  and  condi- 
tions (but  not  exceeding  them)  as  is  provided  under 
Policy  No.   131-68,  cited  above?" 

In  considering  the  questions  presented,  it  is  necessary  at  the  outset  to 
review  briefly  the  pertinent  statutory  provisions. 

General  Laws,  c.  73,  §  1  provides  in  part  as  follows: 

"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  any 
such  college,  for  the  management,  control  and  administration 
of  its  affairs,  for  its  faculty,  students  and  employees,  ...  as 
they  may  deem  necessary  ..." 

This  provision  of  the  General  Laws  clearly  conveys  a  legislative  intent 
to  confer  upon  the  Board  of  Trustees  authority  to  deal  with  the  conduct 
of  the  colleges  under  their  control  in  all  of  the  details  of  their  operation 
and  administration. 

General  Laws  c.  73,  §  16  further  provides: 

"The  trustees  shall  have  complete  authority  with  respect  to 
the  election  or  appointment  of  the  professional  staff  including 
terms,  conditions  and  periods  of  employment,  compensation, 


108  P.D.  12 

promotion,  classification,  reclassification,  transfer,  demotion  and 
dismissal  ..." 

Thus,  the  Board  of  Trustees  is  given  complete  authority  over  the  profes- 
sional staff  of  the  colleges  under  their  control  and  the  Board  has  author- 
ity to  promulgate  all  rules  and  regulations  necessary  for  the  management 
and  control  of  their  affairs.  The  broad  discretionary  powers  of  the  Board 
of  Trustees  relating  to  all  phases  of  employment  indicate  that  G.  L.  c.  73 
is  designed  to  control  the  actions  of  the  Board  relative  to  its  employees 
without  interference  or  restriction  of  any  other  law,  except  as  specifi- 
cally provided.  Consequently,  it  is  clear  that  there  can  be  no  concurrent 
or  supervening  authority  vested  in  another  agency. 

In  light  of  these  provisions,  it  is  evident  that  the  Legislature  has  already 
drawn  the  lines  of  authority.  Mr.  Marsh,  as  a  member  of  the  professional 
staff  of  a  state  college,  is  subject  to  the  authority  of  the  Board  of  Trustees 
and  the  terms  of  his  employment  are  subject  to  the  rules  and  regulations 
of  the  Board  unless  otherwise  specifically  provided  by  law. 

Accordingly,  in  response  to  question  one,  it  is  my  opinion  that  the 
educational  leave  policy  was  applied  correctly  in  the  case  of  Mr.  Marsh. 
The  Director  of  Personnel  and  Standardization  cannot  make  rules  and 
regulations  which  are  applicable  to  members  of  the  professional  staff  of 
a  state  college.    This  authority  is  vested  solely  in  the  Board  of  Trustees. 

Your  second  question  is  also  answered  in  the  affirmative,  since  the 
Board  of  Trustees  is  given  the  authority  to  promulgate  rules  for  the 
management  and  control  of  state  colleges  including  the  employees  there- 
of, and  the  Board  may  establish  rules  governing  educational  leave  for 
professional  non-teaching  staff  members.  In  this  regard,  the  Board  is  not 
limited  to  the  terms  and  conditions  set  out  in  Policy  No.  131-68  of  the 
Director  of  Personnel,  although  it  is,  of  course,  free  to  follow  them. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  33  June  23,  1970 

MR.  GEORGE  W.  WATERS,  Chairman 
Board  of  Standards 

Dear  Mr.  Waters: 

You  have  requested  my  opinion  whether  the  Board  of  Standards  is 
authorized  under  G.  L.  c.  143,  §  3B,  as  amended,  to  make  rules  and 
regulations  relating  to  the  standards  of  materials,  including  electrical 
wiring,  to  be  employed  in  public  garages  and  parking  structures.  For 
the  reasons  hereinafter  stated,  I  find  that  the  Board  has  the  authority  to 
enact  such  rules  aand  regulations,  but  not  with  respect  to  electrical  wiring 
and  electrical  fixtures. 

General  Laws  c.  143,  §  3B  provides: 

"...  [T]he  board  of  standards  in  the  department  shall  make 
rules  and  regulations  relating  to  the  construction,  reconstruc- 
tion, alteration,  repair,  demolition,  removal,  use  or  occupancy, 


P.D.  12  109 

and  to  the  standards  of  materials,  including  materials  used  for 
finish  and  trim,  to  be  used  in  such  construction,  reconstruction, 
alteration,  repair,  demolition,  removal,  use  or  occupancy  of  any 
building,  portion  of  a  building  or  room  which  is  a  place  of 
assembly  or  which  is  required  to  be  provided  with  proper  egres- 
ses or  other  means  of  escape  ..."  (Emphasis  supplied.) 
A  public  garage  or  parking  structure  is  not  a  "place  of  assembly"  as 
defined  by  G.  L.  c.  143,  §  1.    Accordingly,  regulation  of  such  structures 
by  the  Board  would  be  authorized  only  if  they  are  "required  to  be  pro- 
vided with  proper  egresses  or  other  means  of  escape  ..."  The  provisions 
of  G.  L.  c.  143,  §  21,  which  delineate  the  buildings  to  which  this  require- 
ment applies,  state  in  pertinent  part: 

"The  owner,  lessee  or  mortgagee  in  possession  of  any  build- 
ing, in  whole  or  in  part,  used  ...  as  a  factory,  workshop, 
mercantile  or  other  establishment,  and  which  has  accommoda- 
tions for  ten  or  more  employees  .  .  .  shall  provide  such  build- 
ing with  proper  egresses  or  other  means  of  escape  from  fii'e 
sufficient  for  the  use  of  all  persons  employed,  lodged  or  resi- 
dent therein;  provided,  that  .   .   .  such  egresses  or  means  of 
escape    from    fire    ...    in    such    mercantile    establishments, 
hotels    and    buildings    used    solely    for    office    purposes,    shall 
be  sufficient,  to  the  greatest  extent  compatible,  in  the  opinion 
of  the  inspector,  with  the  reasonable  use  thereof,  for  the  use  of 
all  persons  accommodated  or  assembled  therein  ..."    (Em- 
phasis supplied.) 
This  statute  was  designed  for  the  protection  of  human  life  against  tire 
and  is  to  be  broadly  construed  so  as  to  achieve  this  important  purpose. 
Replied  V.  Exchange  Realty  Co.,  321  Mass.  571,  575.   The  term  "estab- 
lishment," as  normally  used  in  business,  means  a  distinct  physical  place 
of  business  and,  in  the  context  of  G.  L.  c.  151  A,  §  25,  has  been  inter- 
preted to  denote  premises,  not  precisely  described  as  a  factory,  where 
labor  is  performed,  such  as  garages  and  repair  shops.   Ford  Motor  Co.  v. 
Director  of  the  Division  of  Employment  Security,  326  Mass.  757,  762. 
I  therefore  conclude  that  the  term  "establishment,"  as  used  in  G.  L.  c. 
143,  §  21,  refers  to  a  distinct  physical  place  of  business  where  labor  is 
performed,  other  than  a  factory,  workshop  or  mercantile  establishment. 
In  my  opinion,  a  public  garage  and  a  parking  structure  both  fall  within 
that  definition. 

However,  either  type  of  building  is  required  to  be  provided  with  proper 
egresses  or  other  means  of  escape  under  §  21  only  if  it  is  an  "establish- 
ment and  .  .  .  has  accommodations  for  ten  or  more  employees  ..." 
(Emphasis  supplied.)  In  other  contexts,  the  term  "accommodations"  has 
been  employed  with  differing  shades  of  meaning.  See,  e.g.,  G.  L.  c.  126, 
§  8;  c.  147,  §19;  c.  161,  §§  104  and  105  and  c.  272,  §  98A.  With  re- 
spect to  §  21,  "[t]he  Legislature  in  using  a  term  capable  of  varying  shades 
of  meaning  must  be  understood  to  have  adopted  the  particular  meaning 
that  best  served  its  purpose  and  aim  in  enacting  the  statute."  St.  George's 
Church  v.  Primitive  Methodist  Ch.,  315  Mass.  202,  205.  In  view  of  the 
purpose  to  be  served  by  the  statute,  the  Legislature  must  have  imputed 
a  basic  and  simple  meaning  to  the  term  "establishment,"  intending  the 


110  P.D.   12 

statute  to  apply  wherever  ten  or  more  persons  were  provided  with  suf- 
ficient facilities  for  employment  in  such  an  "establishment", 

I  therefore  conclude  that  the  Board  of  Standards  is  authorized  to  make 
rules  and  regulations  relating  to  the  standards  of  materials  to  be 
employed  in  public  garages  and  parking  structures  whenever  such  build- 
ings are  required  to  be  provided  with  proper  egresses  or  other  means  of 
escape  under  the  provisions  of  G.  L.  c.  143,  §  21. 

This  authority  of  the  Board,  however,  does  not  extend  to  the  power 
to  make  rules  and  regulations  relating  to  electrical  wiring  and  electrical 
fixtures,  for  G.  L.  c.  143,  §  3L  states: 

"The  board  of  fire  prevention  regulations  shall  make  and 
promulgate,  and  from  time  to  time  may  alter,  amend  and  repeal, 
rules  and  regulations  relative  to  the  installation,  repair  and 
maintenance  of  electrical  wiring  and  electrical  fixtures  used  for 
light,  heat  and  power  purposes  in  buildings  and  structures  sub- 
ject to  the  provisions  of  section  three  to  sixty,  inclusive." 

Regulatory  authority  in  this  area,  therefore,  is  expressly  conferred  upon 
the  Board  of  Fire  Prevention  Regulations,  and  not  upon  the  Board  of 
Standards  under  G.  L.  c.  143,  §  3B. 

You  also  raised  the  general  question  whether  the  Board  may  make 
rules  and  regulations  on  subjects  covered  by  other  boards  and  inquire  as 
to  the  type  of  buildings  and  occupancy  within  the  Board's  jurisdiction. 
A  response  to  this  question  would  require  an  examination  of  all  statutes 
and  acts,  as  well  as  all  rules  and  regulations  thereunder,  with  respect  to 
an  infinite  range  of  merely  hypothetical  situations.  This  I  decline  to  do. 
I  am  willing  in  the  future,  however,  to  respond  to  any  question  involving 
a  definite  factual  controversy.   See  1935  Op.  Atty.  Gen'l,  p.  31. 

Very  truly  yours, 

ROBERT  H.  OUINN 

Attorney  General 

No.   34  June  24,  1970 

HIS  EXCELLENCY  FRANCIS  W.  SARGENT 

Governor  of  the  Commonwealth 

Dear  Governor  Sargent: 

You  have  requested  my  opinion  whether,  in  the  light  of  G.  L.  c.  33, 
§  23(a)(1),  as  inserted  by  St.  1954,  c.  590,  §  1,  you  may  fill  the 
vacancy  recently  caused  by  the  retirement  of  the  major  general  command- 
ing the  26th  Infantry  Division  of  the  Massachusetts  Army  National  Guard 
by  appointing  to  that  position  the  major  general  who  now  commands  the 
Headquarters  Augmentation  Unit  of  the  Army  National  Guard. 

General  Laws  c.  33,  §  23(a)(1)  provides: 

"A  major  general  of  the  line,  commanding  a  division,  shall 
be  appointed  by  the  commander-in-chief  from  the  brigadier 
generals  of  the  line  who  have  served  in  such  offices  for  a  period 
of  at  least  two  years." 


P.D.   12  111 

Your  question  arises  due  to  a  change  in  December  of  1967  of  the 
table  of  organization  of  the  senior  line  officers  of  the  Array  National 
Guard  in  the  Commonwealth.  Prior  to  that  time,  the  table  provided  for 
one  major  general,  the  commanding  general  of  the  26th  Infantry  Division. 
When  the  table  of  organization  was  revised  by  the  National  Guard  Bureau 
of  the  Department  of  Defense,  an  additional  major  general  was  authorized, 
to  command  the  newly  formed  Headquarters  Augmentation  Unit.  In 
1968,  one  of  the  then  brigadier  generals  was  duly  promoted  to  the  rank 
of  major  general  and  assigned  to  that  post,  which  he  still  holds. 

It  appears  that  same  directive  which  revised  the  table  of  organization 
created  an  additional  position  of  brigadier  general,  bringing  the  number 
of  brigadier  generals  back  to  two.  Thus,  the  incumbent  brigadier  generals 
were  both  appointed  in  1968,  one  as  a  result  of  the  promotion  to  the 
newly  created  position  of  major  general  and  the  other  as  a  result  of  the 
creation  of  the  new  position  of  brigadier  general. 

As  a  result  of  the  1967  revision  of  the  table  of  organization  of  the 
senior  line  officers  of  the  Army  National  Guard  of  the  Commonwealth 
and  the  1968  promotions  which  occurred  subsequent  to  that  revision, 
the  senior  line  officers  of  the  Army  National  Guard  are  no  longer  confined 
to  the  rank  of  brigadier  general.  Rather,  the  senior  line  officers  consist 
of  one  major  general  and  two  brigadier  generals.  In  view  of  the  statutory 
language  quoted  above,  you  state  that  you  are  uncertain  whether  you  may 
appoint  or  transfer  the  major  general  commanding  the  Headquarters 
Augmentation  Unit  to  tlie  command  of  the  26th  Infantry  Division  with 
the  same  rank. 

It  is  my  opinion  that  you  may  make  the  contemplated  appointment. 
When  the  General  Court  enacted  St.  1954,  c.  590,  there  was  only  one 
major  general,  i.e.  the  commanding  officer  of  the  26th  Division. 
When  the  incumbent  of  that  position  retired  or  resigned,  it  was  necessary 
to  make  a  promotion  from  among  the  senior  line  officers  in  the  next 
highest  rank,  i.e.  brigadier  general,  and  the  General  Court  added  the 
proviso  that  the  officer  appointed  must  have  served  as  a  brigadier  general 
for  a  period  of  at  least  two  years.  I  observe  that  St.  1954,  c.  590  was 
enacted  long  before  the  revision  of  the  table  of  organization  of  senior  line 
officers,  a  revision  over  which  the  General  Court  had  no  control. 

In  my  view,  the  General  Court  intended  only  that  a  senior  line  officer 
appointed  to  the  coraraand  of  the  26th  Division  have  the  minimum  quali- 
fications of  two  years  in  the  office  of  brigadier  general.  An  interpretation 
of  the  statute  to  the  effect  that  additional  qualifications,  such  as  those 
possessed  by  the  officer  now  commanding  the  Headquarters  Augmenta- 
tion Unit,  disqualifies  an  officer  for  appointment  to  the  position  of 
commander  of  the  26th  Division,  is  clearly  not  warranted.  The  General 
Court  could  not  have  foreseen  the  revision  of  the  table  of  organization 
when  it  enacted  St.  1954,  c.  590.  In  connection  therewith,  it  must  be 
noted  that  "statutes  do  not  govern  situations  not  within  the  reason  of 
their  enactment  and  giving  rise  to  radically  diverse  circumstances  pre- 
sumably not  within  the  dominating  purpose  of  .  .  .  [their  framers]." 
Edgar  H.  Wood  Associates,  Inc.  v.  Skene,  2>A1  Mass.  351,  362,  quoting 
Commonwealth  v.  Welosky,  276  Mass.  398,  403,  cert.  den.  284  U.S. 
684.   Also,  "[ejvery  statute,  if  possible,  is  to  be  construed  in  accordance 


112  P.D.  12 

with  sound  judgment  and  common  sense,  so  as  to  make  it  an  effectual 
piece  of  legislation."  Commonwealth  v.  Slome,  321  Mass.  713,  716.  See, 
also,  Sun  Oil  Co.  v.  Director  of  the  Division  of  the  Necessaries  of  Life, 
340  Mass.  235,  238. 

In  conclusion,  then,  it  is  my  opinion  that  you  may  appoint  the  major 
general  commanding  the  Headquarters  Augmentation  Unit  of  the  Massa- 
chusetts Army  National  Guard  to  the  position  of  commander  of  the  26th 
Division  of  the  Guard.  In  view  of  my  conclusion,  it  is  unnecessary  to 
discuss  the  question  whether  the  major  general  commanding  the  Head- 
quarters Aumentation  Unit  could  be  transferred  to  the  position  of  com- 
mander of  the  26th  Division. 

Very  truly  yours, 
ROBERT  H.  QUINN 

Attorney  General 

No.  35  June  25,  1970 

HONORABLE  JOHN  F.  X.  DAVOREN 

Secretary  of  the  Commonwealth 

Dear  Mr.  Secretary: 

You  have  requested  my  opinion  with  regard  to  reporting  and  recording 
births  and  amending  birth  records  where  there  is  a  question  of  legitimacy 
of  the  child.  You  present  three  casses.  I  have  set  forth  below  with  re- 
spect to  each  case  the  facts,  your  question,  and  my  opinion  and  answer. 

1.  A  child  was  born  on  November  8,  1969.  On  November  11,  1969, 
the  mother  and  her  husband  signed  an  affidavit  admitting  that  the  child 
was  not  that  of  the  husband.  The  hospital  sent  the  record  of  birth  and 
the  affidavit  to  the  clerk  of  the  municipality  involved. 

Must  the  clerk  accept  and  record  the  birth  as  illegitimate? 

The  clerk  has  the  statutory  duty  of  receiving  or  obtaining  and  record- 
ing in  the  birth  record  of  a  legitimate  child  the  name  of,  and  certain  other 
facts  relating  to,  the  father.  Such  information,  however,  must  not  be  re- 
corded in  the  birth  record  of  an  illegitimate  child.  G.  L.  c.  46,  §  1.  It 
follows  that  the  clerk  must  determine  whether  the  child  is  legitimate. 
If  the  child  was  conceived  or  born  in  wedlock,  he  is  presumed  to  be  legiti- 
mate. Commonwealth  v.  Leary,  345  Mass.  59,  60.  Wechsler  v.  Mrocz- 
kowski,  351  Mich.  483.  Op.  Att'y  Gen.  207,  208  (1921).  The  clerk, 
in  such  a  case,  must  record  the  child  as  legitimate.  If,  after  such  record- 
ing, the  clerk  receives  an  affidavit  of  the  mother  and  the  man  who  was 
her  husband  at  the  time  of  conception  or  birth  admitting  that  the  child 
is  illegitimate,  the  clerk  must  then  correct  the  birth  record  to  reflect  this 
fact.   G.  L.  c.  46,  §  13,  para.  3. 

It  is  true  that  there  is  no  statutory  provision  for  the  filing  of  such  an 
affidavit  with  the  clerk  prior  to  his  recording  the  birth.  By  necessary 
implication,  however,  if  such  an  affidavit  is  filed  prior  to  the  recording 
of  the  birth,  the  birth  must  be  recorded  as  illegitimate,  for  the  affidavit 
is  evidence  of  the  facts  at  the  time  of  the  birth.  See  Op.  Att'y  Gen.  619, 
621  (1922).   Since  it  is  acceptable  to  correct  a  record  to  reflect  the  true 


P.D.  12  113 

facts  as  of  the  time  of  birth,  it  cannot  reasonably  be  said  to  be  unaccept- 
able as  a  basis  for  recording  the  true  facts  in  the  first  mstance.  This 
construction  of  the  statute,  which  I  recognize  governs  very  strictly  the 
reporting  and  the  recording  of  births,  is  consistent  with  the  obvious 
legislative  intent  to  provide  and  maintain  accurate  and  reliable  birth 
records.   See  G.  L.  c.  46,  §  19. 

My  answer  to  your  first  question  is  "Yes". 

2.  A  child  was  born  on  June  26,  1969.  The  mother  was  then  di- 
vorced, the  decree  having  become  absolute  on  March  15,  1969. 

Should  this  child  be  reported  as  legitimate? 

The  presumption  of  legitimacy  when  a  child  is  born  in  wedlock  can  be 
overcome  only  by  the  facts  which  prove  beyond  all  reasonable  doubt  that 
the  husband  could  not  have  been  the  father.  Sayles  v.  Sayles,  323  Mass. 
66,  69.  Commonwealth  v.  Stappen,  336  Mass.  174,  177.  Commonwealth 
V.  Leary,  345  Mass.  59,  60.  The  same  strong  presumption  exists  when  a 
child  is  conceived  in  wedlock  although  born  after  a  divorce  decree  has 
become  absolute.  Drennan  v.  Douglas,  102  111.  341.  Wechsler  v.  Mrocz- 
kowski,  351  Mich.  483.  Haugen  v.  Swanson,  219  Minn.  123.  Wilson  v. 
Wilson,  8  Ohio  App.  258. 

Therefore,  where  it  appears  that  the  mother  was  married  at  the  time 
of  conception  but  was  divorced  at  the  time  of  birth,  the  birth  must  be 
reported  and  recorded  as  legitimate  in  the  absence  of  an  appropriate 
affidavit  as  prescribed  by  statute,  or  evidence  that  the  child  has  been 
legally  determined  to  be  illegitimate.  G.  L.  c.  46,  §  13,  para.  3.  Op. 
Att'y  Gen.  207,  208  (1921). 

My  answer  to  your  second  question  is  "Yes". 

3.  A  child  was  born  on  July  3,  1969.  The  mother  was  divorced  at 
the  time  of  birth,  the  decree  having  become  absolute  on  March  24,  1969. 
On  July  24,  1969,  she  signed  an  affidavit  before  the  clerk  having  custody 
of  the  birth  record  stating  that  her  former  husband  was  not  the  father. 

Is  such  an  affidavit  signed  by  the  mother  alone  sufficient  to  allow  the 
clerk  to  amend  the  birth  record  by  removing  the  name  of  the  former 
husband  as  the  father? 

As  I  stated  in  answer  to  your  second  question,  a  child  conceived  in 
wedlock  must  be  reported  and  recorded  as  legitimate  in  the  absence  of 
evidence  of  a  legal  determination  of  illegitimacy  or  an  appropriate  affi- 
davit. G.  L.  c.  46,  §  13,  para.  3.  The  affidavit  must  be  signed  by  both 
the  mother  and  the  husband.  However,  if  the  clerk  is  satisfied  that 
either  the  mother  or  the  husband  cannot  be  located,  then  he  may  accept 
an  affidavit  from  the  available  party.  He  cannot,  solely  on  the  basis  of 
such  an  affidavit,  remove  the  name  of  the  husband  as  the  father.  Before 
making  such  a  change  in  the  record,  the  clerk  must  also  have  received 
"evidence  substantiating  the  statements  in  such  affidavit  beyond  all 
reasonable  doubt,  which  affidavit  and  evidence  shall  have  been  submitted 
by  the  town  clerk  to  a  judge  of  probate  or  to  a  justice  of  a  district  court 
and  shall  have  been  approved  by  such  judge  or  justice."  G.  L.  c.  46, 


114  P.D.   12 

§  13,  para.  3.    Your  facts  do  not  reveal  that  these  additional  statutory 
requirements  have  been  met. 

The  answer  to  your  third  question  is  "No". 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 


No.  36 


June  25,  1970 


HONORABLE  JOHN  J.  FITZPATRICK 

Commissioner  of  Correction 

Dear  Commissioner  Fitzpatrick: 

You  have  requested  my  opinion  as  to  which  records  and  files  of  the 
Department  of  Correction  may  be  opened  to  staff  members  of  the 
Harvard  Prison  Legal  Assistance  Project  for  inspection.  It  appears  that 
the  staff  of  the  Project  wish  to  examine  commitment  books  and  "a  number 
of  files"  to  aid  in  the  preparation  of  an  inmate's  appeal  to  the  Appellate 
Division  of  the  Superior  Court  for  a  reduction  of  sentence. 

You  inform  me  that  much  of  the  information  in  the  files  of  the  Depart- 
ment is  gathered  through  G.  L.  c.  276,  §  100.  That  section,  as  most 
recently  amended  by  St.  1969,  c.  838,  §  63,  provides: 

"Every  probation  officer,  or  the  chief  or  senior  probation 
officer  of  a  court  having  more  than  one  probation  officer,  shall 
transmit  to  the  commissioner  of  probation,  in  such  form  and 
at  such  times  as  he  shall  require,  detailed  reports  regarding  the 
work  of  probation  in  the  court,  and  the  commissioner  of  correc- 
tion, the  penal  institutions  commissioner  of  Boston  and  the 
county  commissioners  of  counties  other  than  Suffolk  shall 
transmit  to  the  commissioner,  as  aforesaid,  detailed  and  com- 
plete records  relative  to  all  paroles  and  permits  to  be  at  liberty 
granted  or  issued  by  them,  respectively,  to  the  revoking  of  the 
same  and  to  the  length  of  time  served  on  each  sentence  to 
imprisonment  by  each  prisoner  so  released  specifying  the  in- 
situation  where  each  such  sentence  was  served;  and  under  the 
direction  of  the  commissioner  a  record  shall  be  kept  of  all  such 
cases  as  the  commissioner  may  require  for  the  information  of 
the  justices  and  probation  officers.  PoHce  officials  shall  co- 
operate with  the  commissioner  and  the  probation  officers  in 
obtaining  and  reporting  information  concerning  persons  on 
probation.  The  information  so  obtained  and  recorded  shall  not 
be  regaided  as  public  records  and  shall  not  be  open  for 
public  inspection  but  shall  be  accessible  to  the  justices  and  pro- 
bation officers  of  the  courts,  to  the  police  commissioner  for  the 
city  of  Boston,  to  all  chiefs  of  police  and  city  marshals,  and  to 
such  departments  of  the  state  and  local  governments  as  the 
commissioner  may  determine.  Upon  payment  of  a  fee  of  one 
dollar  for  each  search  such  records  shall  be  accessible  to  such 


P.D.  12  115 

departments  of  the  federal  government  and  to  such  educational 
and  charitable  corporations  and  institutions  as  the  commissioner 
may  determine.  The  commissioner  of  correction  and  the  de- 
partment of  youth  services  shall  at  all  times  give  to  the  com- 
missioner and  the  probation  officers  such  information  as  may  be 
obtained  from  the  records  concerning  prisoners  under  sentence 
or  who  have  been  released." 

At  the  outset,  I  am  uncertain  whether  you  are  referring  to  the  infor- 
mation submitted  by  you  to  the  Commissioner  of  Probation  or  informa- 
tion received  by  you  as  a  result  of  an  examination  of  the  reports  submit- 
ted to  the  Commissioner.  However,  both  alternatives  have  been  taken 
into  consideration  in  the  preparation  of  this  opinion. 

The  definition  of  "public  records"  in  this  Commonwealth  is  quite  broad. 
General  Laws,  c.  4,  §  7,  as  amended  by  St.  1969,  c.  831  §  2,  provides, 
in  pertinent  part: 

"Twenty-sixth,  'Public  records'  shall  mean  any  written  or 
printed  book  or  paper,  any  map  or  plant  [sic]  of  the  common- 
wealth, or  of  any  county,  district,  city,  town  or  authority 
established  by  the  general  court  to  serve  a  public  purpose,  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  or  of  a  county,  district,  city, 
town  or  such  authority  has  received  or  is  required  to  receive  for 
filing,  any  official  correspondence  or  of  a  county,  district,  city, 
town  or  such  authority,  and  any  book,  paper,  record  or  copy 
mentioned  in  section  eleven  A  of  chapter  thirty  A,  where  appli- 
cable, section  nine  F  of  chapter  thirty-four,  section  twenty-three 
A  of  chapter  thirty-nine,  or  sections  five  to  eight,  inclusive,  and 
sixteen  of  chapter  sixty-six,  including  public  records  made  by 
photographic  process  as  provided  in  section  three  of  said  chap- 
ter." 

Records  faffing  within  the  above-quoted  definition  are  open  to  inspec- 
tion and  examination.  In  that  respect,  G.  L.  c.  66,  §  10  provides  in 
pertinent  part: 

"Every  person  having  custody  of  any  public  records  shall, 
at  reasonable  times,  permit  them  to  be  inspected  and  examined 
by  any  person,  under  his  supervision,  and  shall  furnish  copies 
thereof  on  payment  of  a  reasonable  fee  .  .  .  " 

The  Legislature,  however,  has  seen  fit  to  remove  certain  records  from 
the  general  rule  that  books  or  papers  received  for  filing  or  which  are 
required  to  be  received  for  filing  are  public  records.  Thus,  G.  L.  c.  276, 
§  100,  to  which  you  refer,  states  that  reports  submitted  to  the  Commis- 
sioner of  Probation  pursuant  to  that  section  are  not  "public  records"  and 
thus  are  not  open  to  public  inspection  and  examination,  with  certain 
exceptions  noted  in  the  statute.  However,  an  examination  of  the  statutes 
relating  to  the  Department  of  Correction,  and  more  particularly  the 
statutes  with  respect  to  the  filing  and  receipt  of  certain  reports  (see,  e.g., 
G.  L.  c.  124,  §§  5,  6,  8,  and  9),  indicates  that  the  Legislature  has  not 
exempted  the  records  of  the  Department  of  Correction,  if  they  otherwise 


116  P.D.   12 

come  within  the  definition  of  "public  records,"  from  the  provisions  of 
G.L.c.  66,  §  10. 

It  is  my  opinion,  therefore,  that  the  commitment  books  maintained 
by  the  Department  are  open  to  public  inspection  and  examination.  In 
so  far  as  "the  number  of  files"  mentioned  in  your  letter  are  concerned,  I 
am  unable  to  answer  that  portion  of  your  inquiry  with  certainty.  However, 
the  contents  of  those  files,  with  the  exception  noted  below,  are  open  to 
inspection  and  examination  if  they  are  "public  records"  falling  within 
the  definition  set  out  in  G.  L.  c.  4,  §  7.  The  exception  includes  any  in- 
formation received  as  a  result  of  an  inspection  or  examination  of  the 
records  of  the  Commissioner  of  Probation  referred  to  in  G.  L.  c.  276,  § 
100  and  reports  submitted  by  you  to  the  Commissioner  of  Probation 
pursuant  to  the  same  section.  In  the  event  that  a  request  is  made  to 
examine  such  information,  it  would  be  necessary  to  obtain  the  consent 
of  the  Commissioner  of  Probation  pursuant  to  the  terms  of  section  100.  I 
would  suggest  that  any  information  received  from  the  Commissioner  be 
segregated  from  other  records  and  reports  in  so  far  as  the  same  is  prac- 
ticable. 

In  the  event  that  particular  requests  to  examine  and  inspect  records 
raise  further  questions,  you  are  free  to  call  upon  us  for  assistance  when- 
ever it  is  required. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  37  June  30,  1970 

MRS.  MABEL  A.  CAMPBELL 

Director  of  Civil  Service 

Dear  Mrs.  Campbell: 

You  have  requested  an  opinion  concerning  the  Model  Cities  Program 
estabhshed  pursuant  to  42  U.  S.  C.  §  3303  and  the  exemption,  if  any, 
of  the  offices  and  positions  thereunder  from  civil  service  law.  More 
specifically,  you  state: 

"I  have  been  requested  to  ask  your  opinion  as  to  the  appli- 
cability of  the  Civil  Service  Law  to  the  offices  and  positions 
within  the  said  program  and  particularly  whether  the  Federal 
statute  and  the  contracts  executed  by  municipalities  thereunder 
modify  in  any  way  the  application  of  the  Massachusetts  Civil 
Service  requirements.  Would  you  please  inform  me,  therefore, 
if  in  your  opinion  there  is  any  exemption  for  these  offices 
and  positions?" 

You  have  also  requested  an  opinion  concerning  several  bills,  par- 
ticularly House  No.  5600  of  1969.  State  officers  are  entitled  to  the 
opinion  of  the  Attorney  General  only  upon  questions  necessary  or  inci- 
dental to  the  discharge  of  the  duties  of  their  office.  I  am  unable  to  see 
how  pending  legislation  in  any  way  concerns  the  actual  performance  of 
your  duties  and  must,  therefore,  ask  to  be  excused  from  answering  any 


P.D.  12  117 

questions  relative  thereto.     2  Op.  Atty.  Gen.  100,  November  15,  1899. 

With  respect  to  your  first  question,  you  state  that  you  have  made  a 
determination  that  an  exemption  exists  for  a  total  number  of  officers 
and  employees  not  exceeding  thirty  to  be  employed  in  a  model  cities 
program  in  any  one  city.  St.  1968,  c.  603.  You  have  further  determined 
that  no  other  exemption  exists  under  the  apphcable  statutes.  In  your  re- 
quest, you  suggest  no  doubts  concerning  your  conclusions  in  relation  to  the 
performance  of  your  duties,  and,  accordingly,  it  does  not  appear  that 
you  are  presented  with  a  factual  situation  or  controversy  in  which  you 
are  required  to  act  and  which  warrants  the  assistance  of  this  Depart- 
ment. See  Op.  Atty.  Gen.,  February  14,  1935,  at  31.  On  the  con- 
trary, it  appears  that  you  "have  been  requested  to  ask  .  .  .  [my]  opinion" 
at  the  instance  of  a  municipal  official,  and  that  your  request  has  been 
forwarded  to  this  Department  merely  as  an  act  of  accommodation  in  his 
behalf.  This  Department  has  no  authority  whatever  to  render  opinions 
to  such  officials,  and  it  has  been  the  long-established  policy  of  this  Depart- 
ment not  to  offer  such  assistance.  Op.  Atty.  Gen.,  January  29,  1935, 
at  30.    Consequently,  I  must  decline  to  comply  with  your  request. 

I  am  willing  in  the  future,  of  course,  to  respond  to  any  question  in- 
volving a  factual  controversy  involving  the  discharge  of  your  official 
duties. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 

No.  38  June  30,  1970 

MR.  I.  ALBERT  MATKOV 

State  Librarian 

Dear  Mr.  Matkov: 

You  have  requested  my  opinion  whether  positions  in  the  State  Library 
are  subject  to  the  Civil  Service  Law  and  Rules.  You  inform  me  that 
prior  to  the  enactment  of  St.  1967,  c.  780  (as  most  recendy  amended 
by  St.  1970,  c.  165),  all  appointments  to  positions  in  the  State  Library, 
except  employees  holding  clerk  typists'  positions,  were  approved  by  the 
Division  of  Civil  Service  as  "not  being  subject  to  the  rules  and  regulations 
of  Civil  Service." 

A  resolution  of  your  question  requires  a  brief  review  of  the  pertinent 
statutory  and  regulatory  provisions.  The  authority  of  the  Civil  Service 
Commission  to  promulgate  rules  concerning  the  classifications  of  positions 
in  the  official  service  and  labor  service  of  the  Commonwealth  is  derived 
from  G.  L.  c.  31,  §  3,  which  provides  in  pertinent  part: 

"Subject  to  the  approval  of  the  governor,  the  commission 

from  time  to  time  shaU  make  and  may  amend  rules  which  shall 

regulate  the  selection  and  employment  of  persons  to  fill  positions 

in  the  official  service  and  labor  service  of  the  commonwealth  ..." 

In  turn,  the  Commission's  rules  have  the  force  of  law  {Lynes  v.  Board  of 

Selectmen  of  Milton,  346  Mass.  59,  61).     Rule  3(1)  (b)  of  those  rules 

delimits  the  Classified  Official  Service : 


118  P.D.   12 

"The  offices  and  positions  and  the  persons  performing  duties 
or  rendering  service  in  any  office  and  position  and  classes  of 
positions  in  the  Commonwealth,  the  Massachusetts  Bay  Trans- 
portation Authority  Police  Department,  and  cities,  unless  other- 
wise exempted  by  statute." 
Rule  1  of  the  Civil  Service  Rules  states: 

"2.  Persons  paid  by  the  Commonwealth  or  any  city,  whether 
carried  on  the  regular  pay  roll,  or  special  pay  roll  or  by  presenting 
a  bill  personally  or  by  some  other  person,  company  or  corpora- 
tion, shall  be  deemed  to  be  in  the  service  of  the  Commonwealth 
or  the  city  within  the  meaning  of  these  rules  unless  specially 
exempt  by  statute." 
Expenditures  for  the  State  Library  are  authorized  by  G.  L.  c.  6,  §  36, 
which  provides  in  part : 

"The  trustees  of  the  state  library  may  expend  such  sums 
annually  as  the  general  court  may  appropriate  for  permanent 
assistants  and  clerks,  for  books,  maps,  papers,  periodicals,  and 
other  material  for  the  library  ..." 
Finally,  the  function  of  the  State  Library  is  controlled  by  G.  L.  c.  6, 
§  38,  which  provides: 

"The  state  library  shall  be  in  the  state  house,  and  shall  be 
kept  open  every  day  except  Sundays  and  legal  hoHdays  for  use 
of  the  governor,  lieutenant  governor,  council,  general  court  and 
such  officers  of  the  government  and  other  persons  as  may  be 
permitted  to  use  it." 
It  is  thus  clear  that  persons  holding  positions  in  the  State  Library 
are   in   the   service   of   the   Commonwealth   and   are,   by   virtue   of   the 
application  of  Rule  3  of  the  Civil  Service  Commission  subject  to  the 
provisions  of  the  Civil  Service  Law,  unless  otherwise  exempted  by  statute. 
The  operational  effect  of  Rule  3  which  subjects  all  pubhc  service  positions 
to   the   Civil   Service   Law    and   Rules,   unless    otherwise   exempted   by 
statute,  was  succinctly  summarized  by  the  then  Attorney  General,  Clar- 
ence A.  Barnes,  in  an  opinion  rendered  in  1945  to  the  then  Director  of 
Civil  Service : 

"Unless  a  place  in  the  public  service  has  been  specifically  or 
impliedly  excluded  by  the  Legislature  from  the  control  of  the 
Civil  Service  Law  and  Rules,  or  is  within  some  group  of  places 
which   has   been   so   specifically   or   impliedly   excluded,   it   is 
within  the  sweep  of  these  measures  and  is  governed  by  them 
when  ...  it  falls  within  a  classification  estabhshed  by  the 
Civil  Service  Coimnission." 
The  statutory  provisions  which  apply  to  the  State  Library,  G.  L.  c.  6, 
§§  3 3-3 9 A,  contain  no  specific  exemption  from  the  Civil  Service  Law  and 
Rules.     For  examples  of  specific  exemptions,  see  G.  L.  c.    15,   §   35; 
c.  75,  §  24;  c.  75B,  §   12.     General  Laws,  c.  6,  §  34,  which  provides 
that  the  Trustees  of  the  State  Library  shall  have  management  and  con- 
trol of  the  State  Library,  certainly  contains  no  implied  exemption. 

The  only  exemption  is  found  in  G.  L.  c.  31  §  5,  as  amended  by  St. 
1967,  c.  780,  and  St.  1970,  c.  165,  to  which  you  refer.     That  section 


P.D.   12  119 

provides  that  "[P]rofessional  librarians  and  subprofessional  librarians 
whose  duties  require  that  they  have  certificates  issued  by  the  board  of 
library  commissioners  and  pages  who  are  employed  in  libraries  on  a  part- 
time  or  intermittent  basis"  are  exempt  from  the  Civil  Service  Law  and 
Rules.  If  any  persons  holding  positions  in  the  State  Library  fall  within 
the  latter  categories,  they  are  exempt  from  the  Civil  Service  Law  and 
Rules.  All  other  positions  in  the  State  Library  are  subject  to  the  Civil 
Service  Law  and  Rules,  and  appointments  to  those  positions  should  be 
made  accordingly. 

Very  truly  yours, 

ROBERT  H.  QUINN 

Attorney  General 


120  P.D.   12 

INDEX  TO  OPINIONS 


AGENCY  AND  TOPIC  OPINION  PAGE 

Administration  and  Finance,  Executive  Office  for: 

Adoption  of  rules  and  regulations  for  purchase 

of    domestic   materials    10  54 

Alcoholic  Beverages  Control  Commission: 

Transfer    of   license    14  63 

Bank  and  Loan  Agencies,  Division  of: 

Assessment  for  investigations  of  licensed  insur- 
ance  premium  finance   agencies   26  94 

Civil  Service,  Division  of: 

Provisional  appointments  of  case  aides  and  social 

service  technicians  23  89 

Reimbursement  to  assistant  superintendent  25  93 

Exemption  of  positions  in  Model  Cities  Program  37  116 

Positions  in  State  Library  exempt  from  38  117 

Consumers  Council: 

Commercial  Banks,  Credit  Reporting  Activities 

of     9  52 

Corporations  and  Taxation,  Department  of: 

Change  of  fiscal  year   17  68 

Corrections,  Department  of: 

Inspection    of   records    36  114 

Education,  Department  of: 

Constitutionality  of  bible  reading  and  prayer  in 

schools     12  57 

Construction  on  federal  property  24  91 

Compulsory  recital  of  pledge  of  allegiance  and 

display  of  flag   31  105 

Governor: 

Constitutionality  of  an  act  prohibiting  the  incit- 
ing of  a  riot  H.5333  3  34 

Compulsory  recital  of  pledge  of  allegiance  and 

display   of  flag    31  105 

Authorization  to  fill  vacancy  of  Major  General, 

Massachusetts  Army  National  Guard  34  110 


AGENCY  AND  TOPIC 

Higher  Education,  Board  of: 

Educational  Leave  for  non-teaching  professional 
staff  members,  State  Colleges  

Mental  Health,  Department  of: 

Commitment  of  Drug  Addicts  

Metropolitan  District  Commission: 

Responsibility  for  tide  gates  

Norfolk  County,  District  Attorney: 

Appointment  of  additional  legal  assistants  

Natural  Resources,  Department  of: 

Water  Resources  Commission  —  Tide  gates 

Establishment  and  powers  of  Marine  Fisheries 

Advisory    Commission    

Acquisition  of  land  for  conservation  

Parole  Board: 

Appointment  of  member  to  

Public  Health  Council: 

Reappointment  of  member  of  General  Court  to  .... 

Public  Health,  Department  of: 

Licensing  of  Infirmaries,  Nursing  homes.   Rest 

homes       

Reorganization  of  food  and  drug  division 

Federal  funds  for  medical  assistance  

Public  Safety,  Department  of: 

Certificate   of   inspection    

Definition  of  bazaar  and  raffle  

Public  Utilities,  Department  of: 

Installation  of  gas  fittings  

Public  Welfare,  Department  of: 

Responsibilities  and  powers  of  

Provisional  appointments  of  case  aides  and  social 

service  technicians  

Federal  funds  for  medical  assistance  

Public  Works,  Department  of: 

Contract  provisions  for  use  of  domestic  materials 


32 

15 

8 

2 


107 
65 

47 
33 
47 


19 

74 

21 

83 

11 

55 

16 

66 

1 

31 

28 

98 

30 

102 

1 

31 

18 

71 

29 

100 

20 

77 

23 

89 

30 

102 

10 

54 

AGENCY  AND  TOPIC  OPINION  PAGE 

Rate  Setting  Commission: 

Federal  funds  for  medical  assistance  30  102 

Retirement,  Board  of: 

Effect  of  non-acceptance  by  cities  and  towns  of 

Veterans'  Retirement  Act  13  61 

Secretary  of  State: 

Recording  birth  records  of  illegitimate  children  ...  35  112 

Standards,  Board  of: 

Rules  and  regulations  of  standards  of  materials...  33  108 

State  Colleges,  Division  of: 

Education    leave    for    non-teaching    professional 

staff  members 32  107 

State  Library: 

Positions  exempt  from  Civil  Service  38  117 

State  Racing  Commission: 

Authority  to  Approve  Supplementary  Applications 

for  running  horse  racing  meetings  4  36 

Amount   withheld   from    total   at   running-horse 

racing  at  state  or  county  fairs  5  38 

Refund  of  license  fee   27  96 

State  Retirement  Board: 

Eligibility  of  technicians  of  Army  and  Air  Nation- 
al Guard  to  remain  in  State  Retirement  System  6  41 

Treasurer  and  Receiver  General: 

Eligibility  of  technicians  of  Army  and  Air  Nation- 
al Guard  to  remain  in  Stale  Retirement  System  6  41 
Effect  of  non-acceptance  by  cities  and  towns  of 
Veterans'  Retirement  Act  13  61 

University  of  Massachusetts: 

Collective  bargaining  22  86 

Youth  Services,  Department  of: 

Appointment  of  Commissioner  of  7  46 

Reimbursement  to  assistant  superintendent  25  93 


JUN    1974