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

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): 

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