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> ublic Document No. 12 

Slje Qlommammmltlj of HaHBartjuBrtta 





Year Ending June 30, 1972 

i ion oi I His i mm UMI Nl AIM'KOVI I) In M FRED C. HOLI AND. si All PUR< HAS1NG AGENT, 

4-1041 16 Estimated Cosl Per ( opy 

Public Document No. 12 

Slj? (Kommimtittaltt! of Hassarfytisettfi 





Year Ending June 30, 1972 


8-74-1041 16 Estimated Cost Per Copy: $2.48 

3ft* fljammamuealtf} nf BHafiaarljufletlfi 

Boston, December 6, 1972 
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, 1972. 

Respectfully submitted, 

Robert H. Quinn 
Attorney General 

P.D. 12 

Sty? (CnmrnnntUFaltlj of iHaaBadjutfrttB 


Attorney General 

First Assistant Attorney General 

Joseph J. Hurley 14 

Paul Good 4 

Assistant Attorneys General 

Ruth 1. Abrams 13 
Nicholas A. Arenella 3 
Mark I. Berson 
W. Channing Beucler 
Daniel T. Brosnahan 
Thomas F. Brownell 13 
Wayne A. Budd 16 
Laurence R. Buxbaum 15 
Howard J. Camuso 2 
Eugene R. Capuano 12 
Charles E. Chase 
Robert J. Condlin 
Paul K. Connolly, Jr. 05 
George T. Contalonis 
Bernard J. Dwyer 
George F. Foley 
Robert Gallagher 4 
David B. Gittlesohn 
Joel S. Greenberg 
Francis V. Hanify 7 
Charles E. Inman 
John J. Irwin, Jr. 
Daniel J. Johnedis 
James X. Kenneally 
James P. Kiernan 
Donald Koleman 11 
Daniel B. Kulak 
John P. Larkin 
Carter Lee 
Arthur P. Loughlin 
Alan G. Macdonald 
Peter F. Macdonald 

Charles M. MacPhee 
Bernard J. Manning 
Walter H. Mayo, III 
James P. McCarthy 
James D. McDaniel, Jr. 10 
Gregor I. McGregor 
David A. Mills 04 
Charles K. Mone 12 
Robert Y. Murray 17 
David G. Nagle, Jr. 
David S. Nelson 05 
Lawrence H. Norris 14 
Henry F. O'Connell 
Lawrence J. O'Keefe 08 
Timothy F. O'Leary 
Hugh B. O'Malley 09 
Terence P. O'Malley 05 
Joel Pressman 
Harvey B. Rowe 
Edward L. Scwartz 
William E. Searson 
Frederick J. Sheehan 07 
George W. Spartichino 
George A. Stella 
Dennis M. Sullivan 
Robert L. Surprenant 
Roger W. Tippy 
David B. Vigoda 
John J. Ward 
Andrew M. Wolfe 07 
Christopher H. Worthington 

Assistant Attorney General; Director Division of Public Charities 

James J. Kelleher 

P.D. 12 

Assistant Attorneys General Assigned To Department of Public Works 

Garrett M. Byrne 10 
Richard R. Caples 
Robert W. Coughlin 
Thomas J. Crowley 
John P. Davey 
Samuel R. DeSimone 
Dennis L. Ditelberg 6 
Richard T. Dolan 
Stephen A. Ferguson 
James J. Haroules 
Richard W. Hines 

David A. Leone 
Hugh Morgan 1 
Ross O'Hanley 4 
John H. O'Neil 
Leo A. Reed 1 
Paul E. Ryan 
Herbert L. Schultz 
Richard L. Seegel 17 
Sidney Smookler 
David S. Tobin 
John J. Twomey 

Assistant Attorneys General Assigned to 
Metropolitan District Commission 

Roger L. Aube 
John F. Houton 7 

George Jacobs 
James P. McAllister 

Assistant Attorneys General Assigned to the 
Division of Employment Security 

Joseph S. Ayoub 

Hartley C. Cutter 

Assistant Attorney General Assigned to the Veterans' Division 

Harold J. Keohane 

Chief Clerk 
Russell F. Landrigan 

Assistant Chief Clerk 
Edward J. White 

'Appointed July 1971 
^Appointed August 1971 
^Appointed September 1971 
'Appointed October 1971 
"'Appointed November 1971 
"Appointed February 1972 
7 Appointed March 1972 
"Appointed April 1972 
"Appointed May 1972 

'"Appointed June 1972 
"Terminated July 1971 
12 Terminated August 1971 
'Terminated September 1971 
''Terminated October 1971 
''Terminated November 1971 
"Terminated December 1971 
'Terminated February 1972 

P.D. 12 7 


For The Period 
July 1, 1971 — June 30, 1972 


0810-0000 Administration $2,911,022.30 

0810-6610 Anti-Trust Settlement — Concrete Pipe Case 191,955.15 

0810-6613 Consumer Protection Research and Pilot Program 167,560.32 
0810-6614 Organized Crime Investigation Training and Pre- 
liminary Design of Technical Assistance Center... 2,850.00 
0810-6615 Organized Crime — Law Enforcement Training... 55,000.00 
0810-6616 Drug Training, Manual and Technical Assistance. 50,000.00 
0810-6617 Organized Crime Unit, Phase 2, Intelligence Re- 
trieval and Dissemination System 53,000.00 

0810-6618 Training and Reference Materials 7,500.00 

0811-6615 Organized Crime, Technical Assistance Center.... 50,000.00 

0821-0100 Settlement of Claims 108,000.00 

Total $3,596,887.77 


0810-0000 Administration $2,448,217.68 

0810-6610 Anti-Trust Settlement — Concrete Pipe Case 191,955.15 

0810-6613 Consumer Protection Research and Pilot Program 124,122.73 
0810-6614 Organized Crime Investigation Training and Pre- 
liminary Design of Technical Assistance Center... 2,231.00 
0810-6615 Organized Crime — Law Enforcement Training... 22,521.79 
0810-6616 Drug Training, Manual and Technical Assistance. 8,295.00 
0810-6617 Organized Crime Unit, Phase 2, Intelligence Re- 
trieval and Dissemination System 51,379.50 

0810-6618 Training and Reference Materials 

0811-6615 Organized Crime, Technical Assistance Center.... 45,815.44 

0821-0100 Settlement of Claims 108,000.00 

Total $3,002,538.29 


0801-40-01-40 Fees — Filing Reports $17,186.00 

Charitable Organizations 

0801-40-02-40 Fees — Registration 4,450.00 

Charitable Organizations 

0801-40-03-40 Fees — Professional Fund Raising 80.00 

Council or Solicitor 

0801-69-99-40 Miscellaneous 19,012.34 

Total $40,728.24 

Financial Statement Verified (under requirements of C. 7, S 19 GL) 
November 28, 1972. 

By Edward J. Baldwin 

For the Comptroller 

Approved for Publishing 

M. Joseph Stacey 


P.D. 12 

Sllje (Eomtmittuttaltt! of iMassachitBrttB 


Boston, December 6, 1972 

To the Honorable Senate and House of Representatives: 

Pursuant to the provisions of section 1 1 of chapter 12 of the General 
Laws, as amended, I herewith submit my report. 


My fourth Annual Report as Attorney General of the Commonwealth 
of Massachusetts, as required by Gen. Laws c. 30 and 32, encompasses 
the fiscal year from July 1, 1971 to June 30, 1972. 

Three aspects of my role as Attorney General have shaped the direc- 
tion of my efforts throughout the fiscal year. As the Commonwealth's 
lawyer I have continued to make myself and my staff available to advise 
the State's constitutional officers and agencies in relation to the varied 
problems they face from potential conflicts of interest to construction 
and interpretation of legislation and regulations. As the chief law en- 
forcement officer of the Commonwealth I have been privileged to have 
the unique opportunity to propose and urge passage of legislation which 
I feel is responsive to the needs of Massachusetts' citizens in many im- 
portant areas. (A list of fourteen Acts and Resolves my Office proposed 
which were subsequently enacted into law, appears in the appendix.) As 
the "people's lawyer" I have emphasized protecting the public interest 
by information, legislation, and litigation. 

Of particular significance during the fiscal year was the Office's con- 
tinued efforts on behalf of the Commonwealth's consumers. Educating 
the public on consumer protection laws and aids has always been one of 
our chief thrusts. This period the Consumer Protection Division estab- 
lished four new offices throughout the State, see their report infra, to 
make information and assistance available on a broader scale. 

The Office has, in addition, substantially increased its activity in the 
field of environmental protection. In this complicated and relatively un- 
tried legal sphere I feel that the seemingly small steps the office is pres- 
ently taking will prove to be great strides when assessed in the future. 

The individual reports included herein speak for themselves, attesting 
to the day in — day out activity on a myriad of fronts which I feel fur- 
thers the public interest and best serves the Commonwealth's citizens. 


During the fiscal year, the Administrative Division continued to per- 
form its dual roles of rendering advisory services to constitutional offlc- 

P.D. 12 9 

ers and state agencies and representing those same officers and agencies 
in constitutional and civil litigation in the federal and state courts. The 
rendering of advisory services takes on many forms, the most prominent 
being the preparation of formal opinions of the Attorney General which 
numbered forty-five during the year. In addition, some fifty-seven writ- 
ten opinions were issued, signed by various assistant attorneys general. 
Finally, the Division renders oral advice on a continuing basis during 
the year, responding to telephone calls from heads of agencies and their 
staffs and meeting with these same officials on questions which require 
resolution of issues of law. 

The number of written opinions has been reduced over the past sev- 
eral years due to the Division's practice of assigning assistants to the 
various state agencies to act as liaison on legal matters. This has proven 
to be a most successful procedure and has eliminated a number of prob- 
lems which formerly reached the stage of a controversy by the time the 
Attorney General became involved. The assistants so assigned are 
available on request to assist constitutional officers and heads of agen- 
cies when required. Assistants also attend meetings of the various 
boards of professional registration, acting as legal counsel during hear- 
ings involving professional misconduct. In this respect, the legal serv- 
ices rendered are of great importance since the agency hearings often 
lead to the suspension or revocation of professional licenses. 

In discharging the Attorney General's responsibility to render opin- 
ions to state employees concerned with possible conflicts of interest, 
eleven such opinions were prepared for the Attorney General's signa- 
ture. Numerous other opinions were issued signed by assistant attorneys 

Litigation in the federal and state courts now accounts for the princi- 
pal amount of time expended by members of the Division. Two hundred 
and ten cases of a general nature were opened in the federal and state 
courts, and an equal number involving only questions relating to the ad- 
ministration of public welfare statutes were also opened. Since the state 
take-over of welfare responsibilities in 1967, the number of welfare- 
related cases has continued to increase at a dramatic rate. 

The Division prepared and filed briefs and argued two cases on the 
merits in the Supreme Court of the United States, one involving the 
constitutionality of the state loyalty oath (Cole v. Richardson), and the 
other involving the constitutional claim of privilege asserted by news- 
men (In re Pappas). Both cases were decided in the Commonwealth's 
favor. In addition, the Division prepared and filed a brief amicus curiae 
in the case of Board of Regents v. Roth, which involves the question of 
due process rights of non-tenured teachers. Several cases involving the 
same issues are presently in the lower federal courts in Massachusetts. 

The Division was involved continuously during the fiscal year in the 
reorganization proceedings of the Boston and Maine Railroad, pending 
in the United States District Court for Massachusetts. Other federal 

10 P.D. 12 

litigation of note in which the Division was involved during the fiscal 
year included a class action suit brought to test the Massachusetts abor- 
tion statutes, a habeas corpus petition brought by I. Charles Baker, a 
witness who had refused to answer questions during the course of pro- 
ceedings in the supreme judicial court involving alleged misconduct on 
the part of two superior court judges, and several cases attacking the 
constitutionality of the state rules for admission to the Bar. 

In the state courts, the Division participated in cases before the sup- 
reme judicial court involving the Park Plaza urban renewal project, con- 
stitutionality of rent control in the Town of Brookline and the reorgani- 
zation and liquidation of the Surety Bank and Trust Company of Wake- 
field, now defunct. The Division handled a greater than usual number of 
appeals from the Appellate Tax Board and the Commissioner of Insur- 

In addition to the above cases, the Division handled petitions for judi- 
cial review of agency decisions in both the supreme judicial and superior 
courts, suits for declaratory relief and petitions for certiorari and man- 
damus in both courts, and petitions for judicial review of decisions of the 
Civil Service Commission in the state district courts. 

Citizens' Aid Bureau 

During the course of the fiscal year, the scope and effectiveness of the 
Citizens' Aid Bureau has continued to increase. The present full time 
staff of eight currently handles an average of 60 complaints per day. In- 
cluded in the staff is a Spanish-speaking liaison whose job is to service 
the Spanish-speaking community throughout the Commonwealth and 
coordinate with local Spanish-speaking self-help groups. The Bureau has 
become much more visible not only to the public but also to the human 
service deliverers. Many similar types of offices have sprung up in local 
cities and towns throughout the Commonwealth. Citizens' Aid sees its 
function as not only servicing the public but also assisting other service 
deliverers with problems. 

Through Attorney General Quinn's invitation to local colleges and 
universities, the student volunteer program has expanded from the Field 
Education Project at the Harvard Divinity School to encompass schools 
throughout the greater Boston area — Boston College, Brandeis, North- 
eastern, Suffolk, Tufts and Wheelock. Additionally, several high schools 
have been involved with the program, namely Copley Square, Hyde 
Park, and Concord-Carlisle, as well as the Community Interaction 
Through Youth (CITY) Program in Cambridge. Some of the students in 
this latter program are from the Industrial School for Crippled Children. 

Through cooperation with the appropriate local, state, federal and pri- 
vate agencies, problems serviced with success deal with emotionally dis- 
turbed children, children with special needs, e.g., dyslexia or deafness, 
adoption proceedings, return of children from out of state to the parent 
who has custody, placement in nursing homes, coordination of 

P.D. 12 11 

homemaker services for shut-ins, scholarship information and camp 
placement. In addition, daily questions are answered concerning the 
Massachusetts General Laws, landlord-tenant problems, violations of 
the state sanitary code, and information on abatement for the elderly. 

The Chief of the Bureau has been deeply involved in several task 
forces that would improve delivery of human services. As Chairwoman 
of the Child Care Task Force of the Governor's Commission on the 
Status of Women, she has lobbied for day care and comprehensive child 
care programs. Another task force she has been actively working with is 
the Human Services Resources Information Register, comprised of over 
forty state agencies who are presently writing a proposal to establish a 
statewide computerized human services register with regional terminals. 
Another task force is that of Grant Planning for Drug Planning Pro- 
grams in Region IV, a regional approach to insure coordination and 
equal access to human services to everyone within the region. This cor- 
poration will serve as a model for other regions throughout the Com- 

Through various task forces and close interaction with agencies, the 
Citizens' Aid Bureau tries to make government more responsive to the 
needs of our citizens. 

Civil Rights and Liberties 

The important and ever enlarging task of insuring the enforcement of 
laws safeguarding the civil liberties of the citizens of Massachusetts is 
the chief role of the Division of Civil Rights and Liberties. 

In light of this task, the staff of the Division works in close coopera- 
tion with the Massachusetts Commission Against Discrimination, the 
principal government body in the state entrusted with the protection of 
Civil Rights. The MCAD administers the state laws prohibiting dis- 
crimination on the basis of race, color, religion, or national origin. Al- 
though attorneys in the Division represent the MCAD in all court pro- 
ceedings, the most frequent appearances in the Superior Court are con- 
cerned with prevention of discriminatory practices in the areas of hous- 
ing and employment. 

In addition to handling the litigation of complaints filed with the 
MCAD, many complaints are lodged directly with the Division by the 
public. Voting rights, students' rights, women's rights, police com- 
plaints, and legal applications of the obscenity laws are among the main 
areas of public concern. 

In the pursuance of more and better legislation in the field of civil 
rights, the Division has the responsibility of appearing and testifying at 
legislative hearings. Public speaking engagements for interested com- 
munity organizations and civic groups, and development of guidelines 
for police and district attorneys are among the many other efforts under- 
taken by this Division. 

12 P.D. 12 

Consumer Protection 

During the fiscal year, the Division received and investigated over 
11,000 written complaints and referred an additional 1716 complaints to 
regulatory agencies on the federal, state, and city levels. The bulk of 
consumer complaints centered around automobile repairs and related 
matters (1924), home improvements (1171), major appliances (873), and 
landlord-tenant matters (602). The ever-increasing volume of consumer 
complaints has necessitated moving in two specific areas to facilitate 
consumer service: opening new branch offices to achieve a broader base 
from which to work, and soliciting volunteer aid. In July the Division 
opened branch offices in Fall River, Lawrence, Framingham, and New 
Bedford, bringing to a total of eight the offices outside of Boston to 
which consumers may bring complaints. The other branches are located 
in Roxbury, Springfield, Pittsfield and Worcester. The newly estab- 
lished volunteer division is primarily made up of college students and 
law students, and had as many as 150 persons working in the fall. 

The need for educating the public about consumer protection legisla- 
tion and consumer problems was answered by the Division on an ex- 
panded scale. Members of the Division spoke on radio and television 
and made 174 appearances before civic, business, and educational 
groups. Additionally, 400 "consumer columns" were distributed weekly 
to newspapers, consumer publications, and individuals. The popular car- 
toon form Consumer Protection Information leaflet, along with copies of 
the Consumer Protection Act were distributed to schools, civic groups, 
and interested citizens. 

Among the major litigation conducted by the Division during the fiscal 
year, an order was procured to terminate the practice of some Peabody 
trailer park owners who required fees from the sale of trailers by tenant 
trailer owners. Penalties were levied against certain auto dealers who 
had turned back odometers or had sold rented automobiles without dis- 
closing this information to the purchaser. The first criminal complaint 
under the new Motor Vehicle Title Law was filed against a Maiden auto 
dealer for failure to disclose the existence of a lien on a vehicle sold to a 

The Division formed a Consumer Health Task Force to investigate 
improved methods of easing the consumer health-cost burden. This task 
force was instituted after numerous complaints from Blue Cross sub- 
scribers were received, indicating that certain hospitals would not accept 
assignment of benefits for costs incurred. 

The Legislature approved financial backing for the Division's effort in 
opposing utility rate increases by New England Telephone, Boston Edi- 
son, and Boston Gas. In addition, legislation was enacted which au- 
thorizes the Attorney General to seek temporary restraining orders 
against unfair practices, and which provides the Commissioner of Public 
Health with the authority to declare a substance "hazardous", forbid its 
sale, remove it from store shelves, or require more accurate labelling. 

P.D. 12 



The work of the Contracts Division includes the preparation and trial 
of highway and building construction cases before auditors, justices of 
the superior court, and the supreme judicial court. The staff members of 
the Division appear on motions and depositions incident to these cases, 
in addition to prosecuting appeals in public contract matters. All public 
contracts, bonds and leases are reviewed by the Division for correctness 
of legal form. Conferences with officials from more than 80 state agen- 
cies are frequently scheduled to deal with questions relative to state con- 
tracts. In addition to litigation, the Division has attended conferences 
with various department heads and officials, investigated the factual 
background of several contract disputes, and researched statute and 
case law. The following is a summary of the case load during fiscal year 

THROUGH JUNE 30, 1972 


July 1, 1971-July 31, 1971 
August 1, 1971-Aug. 31, 1971 
September 1, 1971-Sept. 31, 1971 
October 1, 1971 -Oct. 30, 1971 
November 1, 1971 -Nov. 30, 1971 
December 1, 1971-Dec. 31, 1971 
January 1, 1972-Jan. 31, 1972 
February 1, 19722-Feb. 28, 1972 
March 1, 1972-March 30, 1972 
April 1, 1972-April 30, 1972 
May 1, 1972-May 31, 1972 
June 1, 1972-June 30, 1972 











































During fiscal 1972, the Criminal Division continued to function as a 
composite of three sections: Trial, Appellate, and Organized Crime. 

Following a seven-month investigation, based upon information sup- 
plied by the New England Organized Crime Intelligence System 
(N.E.O.C.I.S.), prosecutors from the Trial Section presented evidence 
relating to "fixed" races at Suffolk Downs to the Suffolk County Grand 
Jury. Fourteen criminal indictments were returned charging a number of 
individuals with bribery and conspiracy. Six of those indicted have al- 
ready been convicted. 

A prominent attorney, who maintained law offices in Boston, was 
charged with five counts of selling securities in violation of statute, since 
he was not licensed as a stock broker. His conviction has been affirmed 
by the supreme judicial court. 

14 P.D. 12 

Nineteen separate individuals and three corporations were indicted by 
a Middlesex Grand Jury on charges of conspiracy to violate municipal 
bidding procedures. At this writing, some of the criminal trials are pres- 
ently pending. 

A North Attleboro man, who had fled to Israel after Massachusetts 
State Detectives uncovered his involvement in a larceny scheme, was 
extradicted, stood trial in Bristol County, and was sentenced for em- 
bezzling $162,000.00 from a loan company in which he had been an of- 

Thirty-two nursing home operators were prosecuted criminally after 
having been found to be conducting business without a license. Some 
nursing homes were closed, while others made the necessary alterations 
in order to meet statutory requirements. 

A concentrated effort was made by the Division to prosecute the pro- 
liferating number of welfare fraud cases. Hundreds of these cases were 
heard in the district courts throughout the Commonwealth, most re- 
sulted in convictions and fines, while some defendants received criminal 
sentences. Thousands of dollars were recovered by forcing the malefac- 
tors to make restitution. In one matter, an employee of the Welfare De- 
partment fraudulently obtained over $10,000 from the Commonwealth 
by a scheme involving non-existent claimants. In another case, a Mai- 
den Druggist fraudulently billed the Welfare Department for goods and 
services that were never supplied to the alleged recipients. He was paid 
in excess of $106,000 — the sum that constituted the larceny charge. 

The case load of the Appellate Section increased dramatically as pris- 
oners petitioned both state and federal courts for post-conviction relief. 
Division attorneys successfully argued in the United States Supreme 
Court that a state prisoner must first exhaust his available state re- 
medies, before he should be permitted to seek relief in the federal 
courts. In sustaining this principle, the Supreme Court reversed the 
First Circuit Court of Appeals, and upheld the long-recognized principle 
of comity. 

In the state courts, Division attorneys were supported by the Massa- 
chusetts Supreme Judicial Court in their arguments that a petitioner 
seeking a writ of error must resort to the motion for a new trial before he 
can request extraordinary relief. 

The justices of the Probate Court were represented by Division attor- 
neys in both state and federal courts, wherein their power to punish vio- 
lations of separate support decrees by citation for contempt was chal- 
lenged by some litigants. 

Although primarily engaged in defending the actions of judicial offi- 
cials, the Division also instituted law suits in order to have the rights of 
the parties interpreted by court order. In one case, the Commonwealth 
petitioned the supreme judicial court to review, by means of an extraor- 
dinary writ, the following question: Whether bail is available to one who 
is in the custody of the Governor, pursuant to the issuance of an execu- 
tive warrant, following the initiation of interstate rendition proceedings. 

P.D. 12 15 

In another action, a Division attorney briefed and argued successfully 
before the supreme judicial court a Commonwealth appeal taken under 
G.L.c.277,§28E. The highest state court reversed the ruling of a 
superior court judge, who previously allowed a motion to suppress evi- 
dence. The defendant in the case, a Medford police officer accused of 
receiving stolen property, was subsequently convicted and sentenced. 

Important constitutional questions were briefed and argued in state 
and federal courts, and eventually before the United States Supreme 
Court. These cases involved procedures utilized by the 
Commonwealth's courts in motions for a new trial, methods used to re- 
view sentences by the appellate division of the superior courts, and the 
use of prior criminal convictions to impeach defendants at trial. 

In addition to the above activities, the Criminal Division processed 
many requests for extradition and rendition of fugitives; compiled the 
annual summary of changes in the criminal laws; answered uncounted 
inquiries from citizens, either by telephone or by letter; and directed as- 
sistants to speak at police gatherings, civic organizations, service 
groups, schools and colleges in order to create a better understanding 
among laymen of law enforcement techniques, problems, and progress. 

Drug Abuse 

The Drug Abuse Division was established by Attorney General 
Robert H. Quinn in 1969 in order to devise more effective methods for 
combating the problems of drug abuse and to help overcome the mis- 
conceptions and ignorance which leads to drug abuse. 

Since March 1970, the Attorney General has operated a comprehen- 
sive drug abuse education school which deals with all aspects of the drug 
problem. The two week school established in accordance with a man- 
date of Chapter 889, the "Drug Rehabilitation Act," sponsored by At- 
torney General Quinn in 1969. Originally designed for the training of 
state and local law enforcement officers, the course has been expanded 
to include probation officers, corrections officers, nurses, school ad- 
ministrators, and members of other related disciplines. To date there 
have been over 1,000 course graduates from throughout the state. 

The Basic School includes lectures and discussions on the psychologi- 
cal, pharmacological, and sociological aspects of drug abuse; federal and 
state laws and current legislation; organized crime involvement; and 
treatment and rehabilitation of drug dependent persons. An Advanced 
School is available for police officials to train them in informant de- 
velopment and advanced search and seizure techniques. 

Graduates of the Drug Abuse Education School may now receive 
three hours of academic credit for successful completion of the course. 
Fourteen colleges from throughout the Commonwealth have granted col- 
lege credit for the course. 

16 P.D. 12 

Special emphasis was given in this year's courses to field testing and 
evaluation of controlled substances. Each police department represented 
received a special narcotics testing kit. Distribution of these kits was 
made possible through a Law Enforcement Assistance Association 
(LEAA) grant obtained by the Drug Abuse Division. The opportunity 
for chemically analyzing suspected narcotic and other dangerous sub- 
stances at the local level, immediately following confiscation, is viewed 
as a significant breakthrough in criminal law enforcement technique. 

An outgrowth of the police training program is a system of regionali- 
zation whereby graduates of the school organize county agencies for 
gathering data about drugs, sources and supplies. At monthly meetings 
the members of each Narcotics Enforcement Association discuss local 
problems and exchange drug intelligence. 

The Drug Abuse Division hopes to coordinate further the drug intel- 
ligence networks through the use of a computer as a central infor- 
mation-gathering source. A federal grant has been awarded by LEAA 
for the purpose of studying the feasibility of such a program. 

Another LEAA grant is funding the preparation of a police training 
manual for use during the drug school and as reference for police offi- 
cials during drug-related activities. 

The Drug Abuse Division also has a statewide education program for 
school and community groups. The staff conducts an active speaking 
program whereby members conduct lectures and discussions at meetings 
of civic and community groups, professional organizations, and school 

To assist its efforts in the education of the public, the Drug Abuse 
Division publishes two information pamphlets: MASSACHUSETTS 
DRUG ABUSE is distributed to doctors, pharmacists, police officials, 
and interested citizens throughout the Commonwealth. 

As part of his continuing effort to encourage an enlightened approach 
to drug education, Attorney General Quinn has sanctioned several re- 
search projects concerning the effects of marijuana. In November 1969, 
the Attorney General authorized a study by Boston University School 
of Medicine on "Casual Versus Heavy Use of Marijuana, " and in Oc- 
tober 1970, he allowed Boston University to study, in collaboration with 
Arthur D. Little Company, a method for detection of marijuana in the 
blood and urine. In February 1972, Attorney General Quinn gave per- 
mission to Boston University to conduct a research study entitled 
"Marijuana, Suggestibility and Personality: Cause and Effect Interac- 
tion." In March 1972, at the request of the Harvard School of Public 
Health, he gave approval for a study to determine the effects of mari- 
juana, alcohol and carbon monoxide on driving performance. 

In November 1971, the Governor signed the Massachusetts Control- 
led Substances Act, a comprehensive reform of drug laws effective July 

P.D. 12 17 

1, 1972. Members of the Drug Abuse Division actively participated in 
the drafting of the bill. The new law for the first time classifies drugs 
according to their relative harmfulness and brings state drug laws into 
conformity with federal drug laws. 

Eminent Domain 

The Eminent Domain Division bears the responsibility of representing 
the Commonwealth in all litigation involving real estate. This responsi- 
bility encompasses not only land damage actions arising under Chapter 
79 of the General Laws, but includes land court proceedings as well. 
With respect to other litigation, the Division has the additional burden of 
handling cases arising out of the application of Chapter 130 of the Gen- 
eral Laws and various other statutes pertaining to conservation and pol- 
lution. In conjunction with this latter responsibility, the Division repre- 
sents the Attorney General on the Boston Harbor Pollution Committee 
and has been instrumental in suggesting legislation to deal with the prob- 
lems of oil spills. 

Since the Eminent Domain Division serves as counsel to a great 
number of agencies (e.g., Department of Public Works, Metropolitan 
District Commission, Department of Natural Resources, etc.) its efforts 
are by no means confined to the courtroom. A great deal of time is con- 
sumed travelling to the site of land takings and negotiating with opposing 
counsel prior to trial. Attorneys from this Division are called upon daily 
for advice relative to the acquisition and disposal of land. Virtually 
every state agency having an eminent domain or real estate problem 
either writes or calls this Division for advice, help, or an opinion. 

When possible, land is often acquired by purchase rather than by ex- 
ercise of the power of eminent domain. Acquisition in this manner, al- 
though dispensing with costly and time-consuming litigation, still in- 
volves a considerable amount of work for the Division. Among other 
things, title reports must be examined, and all documents must be prop- 
erly prepared. In either case, real estate appraisals must be analyzed and 
evaluated. When the acquisition is by eminent domain, if the taking 
ultimately results in a land damage petition, attorneys from this division 
must be prepared not only to evaluate the appraiser's opinion, but also 
to discuss with him the proper presentation of that opinion in court. 

"In court" refers not only to jury trials but to proceedings before au- 
ditors and to pro barre pacto hearings as well. The use of auditors has 
increased significantly during the past year, a development which in turn 
has increased the workload of the Division. Under this procedure, the 
court originally refers the case to an individual — the auditor — who 
conducts a trial-type hearing and makes a decision as to the merits of the 
controversy. If either party is dissatisfied with this decision, he may 
then insist on his right to a trial by jury. What this amounts to, in many 
instances, is that the one case actually results in two trials. In this re- 
spect, the statistics indicating the Division's "caseload" tend to under- 
state the actual volume of cases tried. 

18 P.D. 12 

The Division began the fiscal year with 1,143 land damage cases pend- 
ing. During the year, while staff attorneys disposed of 226 of these, 168 
new cases were docketed, leaving 1,085 actions pending at the close of 
the year. As stated above, the Division also represents the Common- 
wealth before the land court. In the land court, the Division began the 
year with 93 cases pending. Of these, 77 cases were concluded during 
the year, while 72 new actions were commenced. Thus, with this rela- 
tively large volume of new cases, the Division was left with 88 land 
court cases still pending at the end of the year. 

During the past year, as in prior years, the Division has remained ac- 
tive in representing the interests of the Commonwealth in the case of 
United States v. Maine, et. al, still pending before the Supreme Court 
of the United States. When the case is finally concluded, the question of 
whether the States of the Federal Government will have the right to de- 
velop the natural resources underlying the Atlantic Ocean will be de- 
cided. The unique nature of this case has prompted the Court to appoint 
a Special Master, Senior Judge Albert Maris, to conduct periodic 
evidentiary hearings, at which voluminous historical data has been pre- 
sented. In view of the fact that Massachusetts is joined by most of the 
eastern seaboard states in this litigation, and since each state has its own 
colonial charters, documents, and expert witnesses to present, an early 
conclusion of the litigation cannot, at this point, be forecast. 

During the past year, it came to the attention of the Attorney General 
that a Texas corporation, with the permission of the federal government, 
was conducting oil and gas explorations in the disputed area. Pursuant 
to the Attorney General's directive, the Eminent Domain Division pre- 
pared and submitted to the Supreme Court a motion requesting the 
Court to enjoin these explorations until such time as the Court decides 
the ultimate issue. In a 57 page brief accompanying the motion, it was 
argued that the federal government was wrongfully purporting to issue 
exploratory permits in view of the fact that the Court has yet to deter- 
mine who has paramount rights of exploration and development. Al- 
though the Court, without stating its reasons for doing so, denied the 
Commonwealth's motion, this does not necessarily mean that the Court 
will also decide for the federal government on the ultimate issue. 

The Eminent Domain and Environmental Protection Divisions joined 
forces during the past year to bring a bill in equity seeking the removal 
of illegal fill deposited in the tidelands of the Commonwealth by the 
Fields Point Manufacturing Corporation. The bill also sought restora- 
tion of Poponesset Creek to its natural condition. At present, deposi- 
tions have been taken and the case is proceeding toward disposition. 

During the past year, the Division also placed increased emphasis on 
the matter of rent owed to the Commonwealth. This is indirectly related 
to the exercise of the eminent domain power and, thus, is the responsi- 
bility of this Division. As soon as an order of taking is recorded, the 

P.D. 12 19 

Commonwealth becomes the owner of the land in question. Simultane- 
ously, the former owner becomes the tenant of the Commonwealth and 
the obligation to pay rent arises. Ordinarily only commercial tenants re- 
main on the property for any extended period. Accordingly, the 
Division's rent recovery activity has focused largely on such tenants. 
This activity has resulted in the filing of approximately 90 suits during 
the past year, and recovery of back rent without litigation in numerous 
other instances. 

Employment Security 

The Employment Security Division works closely with the Massachu- 
setts Division of Employment Security. It prosecutes employers who 
are delinquent in paying employment security taxes and employees who 
file and collect on fraudulent claims for unemployment benefits. The 
vigorous prosecutions made by this Division have resulted in the recov- 
ery of substantial sums of money for the Commonwealth. 

During the fiscal year ending June 30, 1972, 920 cases were handled 
by this Division. 533 cases were on hand at the start of the year and 387 
new cases were received during the year, of which 97 were employer tax 
cases and 92 were fraudulent claims cases, with 7 appeal to the supreme 
judicial court, leaving a balance of 730 cases on hand at the end of the 
fiscal year. Monies collected totaled $446,402.03 recovered for the 
Commonwealth, $374,400.03 collected in employer tax cases and 
$72,002.00 collected in fraudulent claims cases. 

The Division is charged with the duty of pursuing those individuals 
found not complying with the Employment Security Law. During the 
fiscal year the Division waged an energetic and forceful program in 
handling all cases referred to the Division for criminal prosecution. 

At the same time, the Attorney General's office has maintained a pol- 
icy of giving the erring individual, corporation or business entity every 
opportunity to make settlement out of court. Concentrated office con- 
ferences were conducted with the principals involved to determine 
whether or not criminal proceedings should be initiated. Criminal pro- 
secutions were taken against those failing to show cooperation with the 
terms of agreement made by this office, but only after they had received 
an opportunity to discuss the matter thoroughly. During this fiscal year 
the Division brought J J J complaints against 59 employers, involving 825 
counts of tax evasion and totaling $240,937 .26 in monies due the Com- 
monwealth. Complaints involving 449 counts of larceny were brought 
against twenty-nine individuals found collecting unemployment benefits 
under fraudulent claims totaling $27 ,800.00 in monies taken from the 

In addition, the Division presented argument on a case before the 
supreme judicial court which involved a question on the interpretation of 
Section 25 (e) (1) of Chapter 151 A, General Laws (waiting period for 
unemployment benefits when individual voluntarily leaves work without 
good cause). In its decision, the court sustained our position. 


P.D. 12 

Vigorous investigations have been conducted into various matters 
such as individuals fraudulently collecting welfare benefits when in fact 
they were found to be receiving unemployment benefits based on wages 
earned in gainful employment during the same period of time. Criminal 
prosecutions were initiated in these cases when the investigations war- 
ranted such action. During this fiscal period one fraudulent welfare 
recipient, found collecting unemployment benefits, was tried, found 
guilty by the district court and sentenced to 2Vi years in the house of 
correction. On appeal to the superior court the sentence was reduced to 
30 days in the house of correction after full restitution was made of the 
monies taken. Furthermore, due to inadequate service received on out- 
standing default warrants that now number approximately two hundred, 
the Division has filed a request that the legislature grant special police 
authority to our investigator, in order that we may expedite service of 
outstanding warrants and thus dispose of many criminal matters. 

It should be noted that due to the increased programs now undertaken 
by the Division, prosecutions result in more convictions. Substantial 
sums of money have been collected; employers and employees have 
been made aware of the penalties and restrictions imposed by the courts, 
and a marked decrease in the number of overall violations has resulted 
in areas where the Division has prosecuted. 

Cases on hand July 1, 1971: 533 

Employer tax cases: 286 

Employee overpayment fraud cases: 247 

Supreme Judicial Court cases — 

(On appeal from Board/Review decision): 

Additional Referrals: 
Employer tax cases: 
Employee overpayment fraud cases: 
Supreme Judicial Court cases — 
(On appeal from Board/Review decision): 

Total Cases During Fiscal Year: 
Cases Closed: 

Employer Tax Cases: 

1 . Paid in full 

2. Uncollectible 

3. Partial Payment, Balance Uncollectible 

4. Returned to DES/Counsel 

5. Transferred into Bankruptcy/Receivership 

Employee Overpayment Fraud Cases: 

1. Paid in full 

2. Returned to Claims Investigation Depart- 

ment for further Administrative action 

Supreme Judicial Court Cases — 
(On appeal from Board/Review decision): 















P.D. 12 


Cases on hand June 30, 1972: 
Employer tax cases: 
Employee overpayment fraud cases: 
Supreme Judicial Court Cases — 

(On appeal from Board/Review decision): 

Total Monies Collected: 
From Employers — 
From Employees — 






Larceny Cases. 

Tax Cases. 

29 Complaints, involving 449 Counts against 29 employees re 
•fraudulent benefits totaling $27,800.00. 

Ill Complaints, involving 825 Counts against 59 employers re de- 
linquent taxes totaling $240,937.26. 

Cases on hand July 1, 1970: 

Employer tax cases: 
Employee overpayment fraud cases 
Supreme Judicial Court cases — 
(On appeal from Board/Review decision): 


Employee overpayment fraud cases: 

1. Paid in full 

2. Returned to Claims Investigation 
Department for further Administrative 


Cases on hand June 30, 1971: 

Employer tax cases: 

Employee overpayment fraud cases 

Supreme Judicial Court Cases — 

(On appeal from Board/Review decision): 



Additional Referrals 

Employer tax cases: 


Employee overpayment fraud cases: 


Supreme Judicial Court cases — 

(On appeal from Board/Review decision): 

Total Cases During Fiscal Year: 

Cases Closed: 

Employer tax cases: 

1 . Paid in full 


2. Uncollectible 


3. Partial Payment, Balance uncollectible 


4. Returned to DES/Counsel 











Total Monies Collected: 


22 P.D. 12 

From Employers — $170,793.78 

From Employees — $ 35,275.50 

Criminal Complaints Brought: 

Larceny Cases: 36 Complaints, involving 575 Counts against 36 employees re 
fraudulent benefits totaling $32, J 30. 00. 

Tax Cases: 120 Complaints, involving 784 Counts against 96 employers re de- 

linquent taxes totaling 2} 1 ,959.82. 

Environmental Protection 

This was the first full fiscal year of operation of Attorney General 
Quinn's Environmental Protection Division. For the first time the 
Commonwealth has a corps of full-time attorneys devoted to environ- 
mental efforts and, accordingly, the year saw a substantial increase in 
court environmental enforcement. 

The Attorney General is the chief law enforcement officer for the 
Commonwealth. Thus, at common law, he could bring public nuisance 
actions and, by statute, he may bring actions on behalf of the 
Commonwealth's pollution agencies. In this role as in-court counsel for 
the Commonwealth in environmental matters, the Attorney General 
presided over several important steps toward environmental quality in 

In June 1971, for instance, Attorney General Quinn's public nuisance 
action against ten major airlines causing excessive smoke at Logan Air- 
port came to a successful conclusion in Suffolk Superior Court with a 
consent decree calling for complete abatement of the nuisance by De- 
cember 1972. 

Additionally, an order .of the Department of Public Health against a 
roofing company to abate odor pollution was upheld by the superior 
court in the first case of its kind in Massachusetts. The case was accom- 
panied by the first state enforcement action in recent memory against 
noise pollution. At issue was a dredging operation off the coast of 
Quincy, which resulted in a final decree obtained from the court requir- 
ing the installation on the dredge of over $150,000 worth of noise abate- 
ment equipment. In each case a large number of people were adversely 
affected by a single source of industrial pollution which had not before 
been the subject of enforcement. Indications are that the populace is be- 
coming markedly more sensitive to forms of pollution beyond air and 
water degradation, and it appears that odor and noise pollution abate- 
ment will increase. 

A further significant court decision in the superior court regarding air 
pollution was the resolution of a challenge by the Associated Industries 
of Massachusetts to the Commonwealth's air pollution regulations. In 
that case the Commonwealth's authority to impose tightened restrictions 
on the sulphur content of fuel oil was upheld. A favorable decision was 
obtained from the United States District Court for Massachusetts in the 
form of a consent decree entered against the Boston and Maine Rail- 
road, thus bringing to an end a long history of various air pollution viola- 

P.D. 12 23 

In the field of water pollution, in addition to active roles in a United 
State Supreme Court case involving a challenge to Florida's oil spill sta- 
tute, and continued representation of the Commonwealth before the 
Atomic Energy Commission in the licensing cases involving Boston 
Edison's nuclear plant at Plymouth and the Vermont Yankee Nuclear 
Power Station in Brattleboro, Vermont, the enforcement of state water 
pollution statutes in state courts has demanded significant time and ef- 
fort from the Division. The most significant development was the 
superior court decision in the Town of Grafton case. Grafton's problem 
was that as a town it discharged raw sewage into the Blackstone River. 
The roadblock to ending this pollution was the town's inability to muster 
the necessary two-thirds vote at the Town Meeting which was required 
to appropriate the requisite funds. While the court was sensitive to the 
small size of the town and appreciative of the efforts of the selectmen to 
foster compliance with earlier orders of the Department of Natural Re- 
sources' Division of Water Pollution Control, the town was nevertheless 
twice found in contempt and a substantial fine levied. For technical vio- 
lations the town was fined $2,000. In addition, on and after July 1, 1972 
the town is to pay $500 per day to the Commonwealth, due and payable 
December 1, 1972 if the Town Meeting has not by that date approp- 
riated the necessary funds for a sewage treatment plant. It is unfortunate 
that court actions must at times be taken against municipalities, but 
nevertheless willful noncompliance with state law deserves an approp- 
riately strong response. 

Ranking with the resolution of the Grafton matter is the decision of 
the supreme judicial court in the Cumberland Cattle case, in which the 
court ended a long saga of noncompliance by the Cumberland Dairy 
Farm in North Attleborough by upholding many agency orders and 
court decrees that had been issued against the farm. At issue was the 
degradation of a tributary to the Seven Mile River, which feeds into 
Orr's Pond, part of the water supply for the City of Attleboro. 

To foster cooperation with federal enforcement agencies an agreement 
was struck during the year with the United States Attorney for the Dis- 
trict of Massachusetts, whereby his office and this Division will share 
data on water pollution enforcement actions. In particular, the U.S. At- 
torney will advise the Attorney General of contemplated civil and crimi- 
nal enforcement actions against Massachusetts polluters, and the Attor- 
ney General will inform the U.S. Attorney of any actions in our state 
courts against water pollution sources which have reached the stage 
where it appears that contempt actions will be necessary to force com- 
pliance. On the subject of criminal enforcement specifically, the Attor- 
ney General plans to designate the Environmental Protection Division 
as the division responsible for coordinating criminal environmental en- 
forcement in Massachusetts. It is planned for the Attorney General to 
meet with all the district attorneys to make available to them the com- 
bined resources of the Environmental Protection Division and the Crim- 
inal Division. 

24 P.D. 12 

Although not required by any statute, Attorney General Quinn has 
undertaken to maintain files on any court actions commenced under au- 
thority of Chapter 732 of the Acts of 1971, the so-called "citizen suit" 
statute. By contacting counsel in those cases, the Division is able to ob- 
tain copies of appropriate pleadings, briefs, and court orders so as to 
make them available to the practicing bar, and to persons interested in 
the status of such citizen suits and the general use of this new environ- 
mental tool. 

In summary form, the active case load of the Division is as follows: 
twenty-nine air pollution court actions are presently pending in the 
superior courts, evenly divided against industry and municipalities. 
There are thirty-nine pending water pollution actions, again half against 
industry and half against municipalities. There are twenty-two actions 
brought to protect Massachusetts coastal and inland wetlands, all of 
which are against individuals or corporations. There are two pending 
Atomic Energy Commission proceedings in which the office has inter- 
vened on behalf of the Commonwealth; four actions in state courts for 
collection of damages due to oil spills; and thirteen other actions in fed- 
eral courts, state courts in Massachusetts or elsewhere, or before ad- 
ministrative agencies in other states. These further cases pertain to au- 
tomobile emissions, pollution from nuclear plants, sanitary landfill re- 
strictions, unlicensed filling in tidewaters, chlorination of water supplies, 
aircraft smoke emissions, and the improper conversion of park land for 
dump purposes. Beyond this enforcement case load, the division is pres- 
ently called upon in eight cases to defend the actions of the Department 
of Public Health and the Department of Natural Resources in imple- 
menting state air pollution, water pollution or wetland statutes. In these 
cases, the division is defending the Commonwealth against challenges 
made in petitions for writs of mandamus, petitions for judicial review, 
petitions for declaratory relief and petitions for annulment of environ- 
mental restrictions as being takings without compensation. The total 
caseload of the office, then, numbers 122 pending cases. This represents 
a marked increase over the caseload of last year and, although statistics 
do not tell the whole story, this represents a responsibility over and 
above the many functions of the office in the spheres of legislation, in- 
vestigation, and the rendering of formal advice to public agencies and 

Industrial Accidents 

The Industrial Accidents Division serves as legal counsel to all the 
departments of the Commonwealth in all workmen's compensation 
cases involving state employees. Pursuant to G.L. c. 152, § 69A, the 
Attorney General must approve all payments of compensation benefits 
and disbursements for related medical and hospital expenses in com- 
pensable cases. In contested cases this Division represents the Com- 
monwealth before the Industrial Accident Board and in appellate mat- 
ters before the superior court and the supreme judicial court. 

P.D. 12 25 

During the past fiscal year a total of 9,042 accident reports were filed 
regarding state employees, an increase of 533 over fiscal 1970 or 2,729 
when compared to the same period five years ago. 

Of the lost time disability cases, this Division reviewed and approved 
1,291 new claims for compensation, an increase of 144 over the previous 
year, as well as reviewing and approving 90 claims for the resumption of 
compensation. In addition to the foregoing, this division disposed of 150 
claims by lump sum agreements and payments without prejudice. 

The Division appeared for the Commonwealth on 586 formal assign- 
ments at the Industrial Accident Board and in the courts on appellate 
matters. Its staff members also participated in an indeterminate number 
of informal appearances at the accident board including those required in 
the review of new claims for evaluation and approval by the Attorney 
General and for the continuing review of accepted cases. 

Disbursements by the Commonwealth for state employees' industrial 
accident claims, including accepted cases, board and court decisions, 
and lump sum settlements, for the period July 1, 1971 through June 30, 
1972 were as follows: 

incapacity compensation 
(including awards for disfigurement 

and bodily loss of function) $2,061,577.06 

Medical Expenses 838,367.08 

Total of all disbursements $2,899,944. 14 

In its capacity as custodian of the second injury funds under Section 
65 (General Fund) and 65N (Veterans Fund) of chapter 152, this Divi- 
sion represents the Commonwealth before the Industrial Accident 
Board regarding petitions filed by insurers and self-insurers for reim- 
bursement out of these funds. The Division has responsibility for enforc- 
ing the obligation of insurers and self-insurers to pay into these funds in 
fatal industrial accident cases where the issue of liability has been con- 
troverted. Because special emphasis was placed upon this role, during 
the fiscal year the funds closed with an unencumbered balance of 
$650,820.67, reflecting a net increase of $113,076.54 over the previous 
fiscal year, and thus insuring that the funds will continue to function at 
no expense to the taxpayers. 

Pursuant to section 11 A, (Acts of 1950, c. 639, as amended) the Divi- 
sion represents the Attorney General as a sitting member on the Civil 
Defense Claims Board. During the past year over 25 claims were acted 
upon, awarding compensation to unpaid civil defense volunteers who 
were injured while in the line of their volunteer training and duties. 

Public Charities 

The year just completed has been one of the busiest in the history of 
the Division. There were increases in the volume and importance of the 
matters dealt with in almost every phase of the Division's activities. The 

26 P.D. 12 

greatly increased load of the Division was handled, until the last quarter, 
without any increase in staff. 

The Division reviewed the following matters relating to trusts and es- 
tates in which there are charitable interests: 

Trustees accounts 2163 

Petitions for Probate of Wills 803 

Executor's accounts 539 

Adm. w.w.a. and Miscellaneous 215 

There were 118 new petitions for Public Administration. During the 
fiscal year, 211 such matters were closed and 79 other petitions relating 
to public administration matters were approved. 

A total of $177,938.99 was paid into the state treasury as escheats 
from public administration and other estates. 

An unusual receipt in the period was a residuary bequest to the Com- 
monwealth amounting to $19,008.24, given by the mother of a man who 
had been a patient in one of the state hospitals for his entire life. 

A total of 3541 annual financial reports by charitable corporations, 
trusts, etc., under G.L. ch. 12, § 8F, were recorded and filed during the 
period and 647 applications for Certificates of Registration to Solicit 
Contributions from the Public were processed. 

One of the provisions of the 1969 Federal Tax Reform Act regulating 
"private foundations" and subjecting them to federal taxation requires 
that a foundation prepare Federal Form 990 AR and send it to the At- 
torney General of the State in which the foundation is located. In addi- 
tion to the reports required by G. L., ch. 12, § 8F, the Division began to 
receive a large number of such filings by "private foundations" located 
in Massachusetts. 

In the first quarter a supplementary directory of the larger "broad 
purpose" charitable trusts and foundations established since 1965 was 
published. A copy of the supplementary directory was mailed to each of 
the larger public libraries in the Commonwealth and others were distri- 
buted to selected groups having particular interests; e.g. Community 
Funds. Information as to these large "broad purpose" grant-making 
trusts and foundations is most desired by hospitals, which seek dona- 
tions from these trusts. 

In the last quarter of the period we completed the printing and began 
the distribution, on a wide scale, of a Directory of the Larger Massa- 
chusetts Trusts which grant scholarships, etc. This publication was pre- 
pared in quantity and copies were mailed to all public libraries in the 
State, all newspapers, high schools, secondary schools, junior colleges, 
colleges and universities as well as to interested individuals. The Direc- 
tory lists all trusts granting scholarships which were listed in the 1965 
Directory of Foundations as well as those established thereafter. The 
Directory has been very favorably received and we have received many 
letters of commendation on its publication. 

P.D. 12 27 

The Division had a very large increase in the number of court cases 
requiring the filing of answers, appearances and hearings. The largest 
part of the increase consisted of actions brought as a result of the provi- 
sions of the 1969 Tax Reform Act regulating and taxing "private founda- 
tions." As so defined almost any trust established by will or gift for a 
general charitable purpose, e.g., a scholarship fund, a fund to make 
grants to unspecified charitable organizations or to the poor, is a "pri- 
vate foundation." Such foundations are now taxed, see above, and if 
they do not annually distribute an amount equal to a fixed percentage of 
the value of their assets, a much higher tax may be imposed. Because it 
is likely that in many cases the return on the investments of a "private 
foundation" will not be sufficient to satisfy the distribution requirement, 
the Attorney General co-sponsored legislation to, in effect, make all 
charitable trusts in Massachusetts within the federal definition of "pri- 
vate foundations" subject to the same standards prohibiting self-dealing 
etc., which are imposed by the Tax Reform Act and permit the invasion 
of principal to the extent necessary to avoid the imposition of penalty 

The usual large volume of accounts of trustees and others, petitions 
for probate of wills, etc., was handled. 

Our most notable case before the supreme judicial court in the period 
was the Fleming case. (Boston Safe Deposit and Trust Co. ulwlo 
George C. Whit more v. Fleming). Judge Wilson of the Suffolk Probate 
Court had entered a decree that adopted children could not take as 
"issue" under a 1900 will. The adopted children appealed. On April 16, 
1971, the supreme judicial court reversed Judge Wilson's decree. The 
Attorney General and the charities objected and requested a hearing. 
On February 15, 1972, the Court withdrew its earlier opinion and filed a 
new 4-3 majority opinion dismissing the appeal and sustaining Judge 
Wilson's decree. The adopted children later appealed to the Supreme 
Court of United States and we joined with the charities in a motion to 
dismiss the appeal. 

In the case of Davenport v. Attorney General, the Attorney General's 
appeal from a decree of the Probate Court for the County of Franklin 
that the trust u/w/o George M. Davenport had failed and the funds 
should be paid to his heirs, was sustained. At a later date the Division 
assented to the appointment of trustees who will receive the trust funds 
and apply them for the charitable purposes specified by the testator, i.e., 
the relief of aged persons of certain towns in Franklin County. 

The Division filed a brief in an appeal by the New England Hospital 
in the Ada A. Draper estate from a decree of the Suffolk Probate Court 
as to that part of the decree effecting a transfer of the trust funds from 
the hospital. 

A petition in the Julius Schweinfurth estate sought approval for a 
study with a view to applying a gift of nearly $1 ,000,000 for a museum in 
Auburn, New York, in conjunction with the Cayuga Museum of History 
and Art. 

28 P.D. 12 

A decree was entered in the Probate Court for the County of Hamp- 
shire, permitting the closing and sale of the Wright Home for Young 
Women and the use of the funds in connection with the construction of a 
"continuing care" facility of the Cooley Dickinson Hospital. The hospi- 
tal is to provide care for six persons eligible for the home as selected by 
the trustees of the home. 

We joined in support of proceedings to have the funds of the Stone 
Retina Hospital, which is a "private foundation," transferred to the Ret- 
ina Foundation, which is a fully exempt charity. The hospital's assets 
included a pledge of $1,500,000 from the W. Clement and Jessie V. 
Stone Foundation which the hospital had agreed with the Massachusetts 
Eye and Ear Infirmary should be used toward the construction of the 
Stone Retina Pavilion in the new building of the infirmary. 

A decree of the supreme judicial court permitted the closing and dis- 
solution of Rest House, Inc., which had operated as a temporary rest 
home for clergy of the Episcopal church and their families. Funds for 
the home had been donated by Elizabeth R. Stevens, who provided that 
if the home were closed the funds should be transferred to the Trustees 
of Donation of the Protestant Episcopal Church. 

Assent was given to a modification of the provisions of the will of 
Thomas Munroe Shephard relating to the establishment of a museum on 
his homestead property in Northampton. The trustee under the 
Shephard will shall establish the museum and arrange with the North- 
ampton Historical Society for the management thereof. 

In the Frances Noyes estate in Middlesex County the judge of the 
probate court entered a decree, in accordance with the Attorney 
General's contentions, that the gift in the will of one-half of the residue 
of the estate was not subordinate to subsequent bequests, taxes and ex- 
penses of administration. 

In the Mary Ellen Collins estate, the residue of which was given in 
trust for the poor of Talloo, County Waterford, Ireland, we approved 
compromises by the trustees of certain claims. 

In the Freeto estate in Essex we filed a brief arguing that the abolition 
of the Board of Public Welfare of Marblehead did not cause the bequest 
under the will to the board to fail, but that the fund should be paid to 
some other body of the town, or the State Department of Public Wel- 
fare, to be used for the poor. 

An appeal was taken from a decree allowing the accounts of the 
Naumkeag Trust Company, as trustee under the will of George A. 
Vickery. The testator left the residue of his estate in trust for the assis- 
tance of officers and employees of the trust company, for the relief of 
others, and for charitable institutions. The trust now has a value of 
nearly $1,000,000. We objected to payments in the account for state and 
federal income taxes and questioned expenditure of the entire income 
for medical care of employees, in view of present day programs such as 
Blue-Cross, etc. 

P.D. 12 29 

We also filed an appeal from the decree in the Caroline A . Crosby es- 
tate that the remainder interest for a home for orphans had failed and 
that the funds should be paid to the heirs. The testatrix died in 1908. She 
provided for life estates in the residue which consisted almost entirely of 
her farm in Pepperell with the remainder for a home for orphans and 
destitute children. Sales of the real estate had been authorized by the 

A declaratory judgment suit was brought for a determination of the 
validity of an amendment to a trust created by Walter J. Rancourt. A 
nephew of the deceased claimed that the deceased did not have the 
capacity to execute the amendment which reduced the charitable re- 
mainder. Questions were raised in a proceeding brought by the Town of 
Washington in New Hampshire, as to the capacity of the donor, Edith 
C. S. Barry, to execute an amendment to a trust she created which cut 
out charitable interests. The Division joined in the proceeding on behalf 
of the charities. One aspect of the proceedings with regard to the 
Maurice E. Goldbert Trust, in which an amendment eliminated charita- 
ble interests, also involved questions of the capacity of the settlor to 
execute the amendment. A similar question was also raised in the Clara 
Winthrop trust, where the amendment, if valid, may have the effect of 
greatly decreasing the gift to charity because of the way in which the 
burden of the federal estate tax would be shifted. 

In the Irving Wood estate, on a proceeding by the Attorney General, 
the court permitted termination of a small trust for prizes, etc., at the 
Massachusetts Maritime Academy and the transfer of the fund to the 
Commonwealth to be held for the same purpose. 

In the Anne Lee estate in Suffolk, on the Attorney General's applica- 
tion, the assets of a small trust for the poor of Boston were transferred 
to the Commonwealth, the income to be used under the direction of the 
Department of Public Welfare. 

In the Ellen Austin estate in Middlesex, two small trusts for elderly 
women, and for temperance, in Moira, New York were transferred to a 
Home for Aged Women and the Women's Christian Temperance Union 
in New York. 

Cases involving dissolution of charitable organizations had the trans- 
fer of their assets to other charities included the Old Ladies Home of 
Chelsea; the Medford Home for the Aged; Boston Academy of the Sa- 
cred Heart; and the Iron Rail Fund of the Girls Clubs of America. 

Estate plans involving charitable gifts by guardians, etc., under the 
new statutes were approved in several estates. 

In the Josef Simenas estate, payment authorized by Chapter 60 of the 
Acts of 1971 of part of the amount escheated to the Commonwealth, to 
one of the heirs of the deceased in Poland, was processed. 

In the Arthur J. Cooper estate, the Division participated with the 
charities named in the will in proceedings to revoke a decree of divorce 
entered on a libel brought by the deceased during his lifetime and later 
approved a compromise of the petitioner's claims. 

30 P.D. 12 

A memo was prepared for the Attorney General in connection with 
proceedings in Texas regarding claims by Massachusetts to an escheat 
of the interests in Texas Pacific Land Trust Certificate #390 standing in 
the name of Blake Brothers and Co.. a now defunct Massachusetts 
stock brokerage. Payment to Blake Brothers' representative has been 
refused because it could not be proven that the firm rather than a cus- 
tomer was the beneficial owner. An escheat to Texas has been denied. 
Massachusetts' claim for escheat would be based on the location here of 
Blake Brothers. 

In the matter of the dissolution of the Oxford Club of Lynn in the su- 
preme judicial court the Division determined that that organization was 
a social club, rather than a charity, and withdrew our appearance in the 
matter. In proceedings with regard to a fund f/b/o employees of the 
Stetson Shoe Company the Division determined that no charitable in- 
terests were involved. 

In Plymouth Shoe Company Employees Association we approved a 
transfer of the remaining assets of the Association to the "Jimmy 
Fund." Whether the funds of such an association are charitable is ques- 
tionable, but controversy was avoided here because the members ap- 
proved the transfer. 

A proceeding in the trust under indenture of William F. Burdett 
sought instructions with regard to a gift of income to the Burroughs 
Newsboys Foundation. In connection therewith inquiries were directed 
to the latter Foundation which had not filed certain reports. 

In the William O. Partridge estate we supported action taken by the 
charitable beneficiaries objecting to fees charged by the executor and the 
keeping of more than $100,000 in a checking account for more than a 
year without interest. The probate court reduced the fees and held the 
executor liable for the lost interest. A decree for a total of $37,000 for 
reduced fees and liability for interest was entered. 

Not only has the year been one of the busiest, it has been one involv- 
ing great changes in staff and facilities. 

On March 1. 1972. Francis V. Hanify was appointed Director to suc- 
ceed James J. Kelleher. anticipatory to Mr. Kelleher's planned retire- 
ment on June 15. Mr. Kelleher left the Division in June after having 
served as Director for nine years, and in the Department since 1927. 

The Division moved from the State House to its new quarters at 131 
Tremont Street, on April 7, 1972. 

Springfield Office 

The Springfield office handles matters of concern to the Attorney 
General in three Western Counties: Hampden, Hampshire and Frank- 
lin. The primary function of the office has been to handle all division 
references, including eminent domain, workmen's compensation, tort, 
welfare, contracts, environmental control and welfare fraud. The office 

P.D. 12 31 

also handles references from the Massachusetts Discrimination Board, 
judicial reviews, extradition and criminal proceedings. Only consumer 
protection matters originate in the Springfield office. 

The office supplies personnel to the Board of Insurance Cancellation 
and the License Board of Appeals for monthly sittings which consider 
approximately forty cases per sitting. 

There are presently 36 pending eminent domain cases — 22 in Hamp- 
den. 5 in Hampshire and 9 in Franklin. From July 1. 1971 to June 30. 
1972 fifteen cases in Hampden were settled: 5 pro barre hearings were 
held. 2 trials were conducted. 1 case was dismissed and 1 discontinued. 
In Hampshire, 2 trials were conducted, while in Franklin there were 6 
trials, and 1 pro barre hearing. During the same period there were 6 ren- 
dition hearings. 6 industrial accident trials, one violent crime trial and 
three trials involving health and welfare. 

There are presently pending, other than eminent domain cases. 7 con- 
tract cases. 2 violent crime cases. 11 HEW cases. 13 tort cases. 2 
workmen's compensation cases and 4 administrative appeals. In 1972 
the office was assigned welfare fraud cases and have since handled 54 of 
these cases. 

In the area of consumer protection the office opened 1 192 complaints 
and closed 1220 during the fiscal year, leaving 90 cases pending. Savings 
for the year to the consumer were SI 56.429.28. 

Our total correspondence on various matters other than consumer 
complaints average over 120 letters per month and range from explaining 
uniform support, birth control, abortion, pornography, and civil liber- 
ties, to housing, rights of privacy, conflict of interest and zoning prob- 
lems. The office makes every effort to respond to all matters within 
twenty four hours and maintains a 24 hour phone service. 

The staff consists of one investigator for consumer protection, two 
secretaries, one attorney for consumer protection, one attorney for wel- 
fare fraud and the Discrimination Board, and two attorneys for other 

Torts, Claims and Collections 

The Tort Division represents officers and employees of the Com- 
monwealth against whom claims are made for tortious acts arising within 
the scope of their employment. 

These cases run the gamut of the law. The Division has defended em- 
ployees charged with such offenses as assault, false imprisonment, 
malicious prosecution, illegal commitments to mental institutions, libel. 
slander, conversion and destruction of personal property, failure to pay 
debts, pollution of streams and sources of drinking water, wrongful sus- 
pension of a driver's license, violation of rights secured by the Constitu- 
tion of the United States, claims of death and injury resulting from med- 
ical malpractice, and many cases of claims of death, injury and property 
damage resulting from improperly maintained state highways and negli- 
gently operated state motor vehicles. 

32 P.D. 12 

These cases have been defended in practically every court in the 
Commonwealth. In fiscal year 1972, the Division prevailed in three 
cases ruled upon by the supreme judicial court. The first was a libel case 
wherein the court upheld the sustaining of a demurrer. The second case 
sustained a jury verdict of $134,000.00 awarded for the destruction of a 
bridge in a motor vehicle accident. The third sustained the correctness 
of a directed verdict in an alleged illegal commitment to a mental institu- 
tion. The bulk of the Division's cases involved motor vehicle accidents. 
During fiscal 1972 there were 159 motor vehicle cases tried or settled in 
the amount of $86,264.07. 

In addition there were 69 moral claims in the amount of $5,227.23; 20 
defect claims in the amount of $3,703.90; and 15 miscellaneous claims in 
the amount of $3,923.34 for a total expenditure of $99,118.54. 

General Laws, c. 12, §§ 4 and 5, authorize the Attorney General's Of- 
fice to collect monies due the Commonwealth. 

The Collection Section during Attorney General Quinn's administra- 
tion collected over $409,000.00 annually, as compared to the previous 
decade in which $267,000.00 was collected annually. 

The type of cases handled by the Collections Section include care and 
support claims against patients of state hospitals, damage to state prop- 
erty, and miscellaneous claims for tuition at state colleges and univer- 
sities. The following is a survey of cases involved in this phase of the 
Division's work: 

Department Involved 

Department of Mental Health 

Department of Public Health 

Department of Public Works 

Metropolitan District Commission 


State Colleges 

Waterways Division 

Water Resources Commission 

Natural Resources 


Industrial Accident Division 

Corporations and Taxation 

Public Safety 

Office of the Secretary 

State Treasurer's Office 

Board of Retirement 

TOTAL $485,841.41 787 

By virtue of General Laws, Chapter 258A, an act providing for the 
compensation of victims of violent crimes, effective July 1, 1968, the of- 
fice of the Attorney General has the responsibility of investigating and 
reporting such claims to the district courts of the Commonwealth. All 
claims are based on out-of-pocket losses of the victims. 

In 1968 this office received fifty-five petitions from victims and nine 
claims were adjudicated with total awards amounting to $4,498.58. 

Amount Received 

No. of Claims 

































P.D. 12 33 

These claims have drastically increased. Presently the office of the At- 
torney General receives thirty petitions per month. In fiscal year 1972, 
82 claims were completed with awards totaling $97,296.10. 

The Attorney General prepared and distributed one hundred thousand 
pamphlets entitled Compensation for Innocent Victims of Violent 
Crimes in order to advise the citizen of their rights under the law. 

Under the authority of General Laws, Chapter 168, § 31, the Attorney 
General directed that a complete search be undertaken in every probate 
court in the Commonwealth for unclaimed bank deposits standing in the 
name of the First Judge of Probate for each county for beneficiaries who 
could not be located. A preliminary survey reveals that some bank 
books have been on file for 100 years. This money when recovered will 
go to the state treasurer. In order to insure that the State receives these 
funds regularly, Attorney General Quinn filed a bill (Chapter 541 of the 
Acts of 1972) requiring all probate courts to report to his office annually 
all accounts which have not been claimed for over twenty years. Every 
account will then be publicized for the benefit of persons who may be 
entitled to the funds. The funds may be recovered by those entitled to it 
upon proper proof. 


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

The Division advises all veterans and veterans' groups of their legal 
rights and obligations. 

34 I\D. 12 


Bills Proposed by Attorney General and Enacted by the 1972 Legisla- 












P.D. 12 35 


—Chapter 531. (continued) . . . PURSUANT TO THE SERVICEMEN'S 




36 P.D. 12 

Number 1 July 1, 1971 

The Honorable Richard E. McLaughlin 

Registrar of Motor Vehicles 

100 Nashua Street 

Boston, Massachusetts 02114 

Dear Registrar McLaughlin: 
You have requested my opinion on the following question: 

"May the specific law-enforcement positions in this agency 
which were upgraded under the provisions of Chapter 837 of 
the Acts of 1970, effective November 26, 1970, be upgraded 
by subsequent budget action or may they only be upgraded 
again by specific legislation?" 

You state that the particular positions which were reallocated to 
higher job groups by St. 1970, c. 837 had formerly been assigned to job 
groups in accordance with G.L. c. 30, §45, by the Director of Personnel 
and Standardization (the Director). You state further that you have re- 
quested that one of the positions upgraded by St. 1970, c. 837 be further 
upgraded by the Director, and that the request has been approved. The 
question has now arisen whether in view of c. 837 such approval is effec- 

In answer to your question, it is my opinion that notwithstanding St. 

1970, c. 837, a reallocation of the position may be made by the Director 
pursuant to G.L. c. 30, §45, without the need for a special act of the 

General Laws, c. 30, §45, requires the Director to establish and ad- 
minister an office and position classification plan and a pay plan of the 
Commonwealth. He is directed in paragraph (4) to "allocate, as pro- 
vided in paragraph five of this section, each such office or position to the 
appropriate job group in the salary schedule set forth in section forty- 
six, . . . and he may from time to time, in like manner reallocate any 
such office or position ..." (emphasis added.) Paragraph (5) of §45 
provides that no permanent allocation or reallocation of any office or 
position shall be effected until certain conditions have been fulfilled, 
among them the approval by the Director of a request for reallocation, 
the filing of the Director's recommendation with the Budget Director 
and the Committees on Ways and Means of the House and Senate, to be 
considered as a part of the budget preparation, and its inclusion in a 
schedule of permanent offices and positions approved by the joint 
Committee on Ways and Means. 

Section 6 of St. 1970, c. 480, the General Appropriations Act for fiscal 

1971, provides in part: 

"Amounts included for permanent positions in sums ap- 
propriated in section two for personal services are based 
upon schedules of permanent positions and salary rates ap- 

P.D. 12 37 

proved by the joint committee on ways and means, and, ex- 
cept as otherwise shown by the files of said committee, . . . 
no part of sums so appropriated in section two shall be avail- 
able for . . . payments on account of reallocations of perma- 
nent positions ..." (Emphasis added.) 
In other words, once an office or position has been included in the 

general schedule approved by the joint Committee on Ways and Means, 

and considered as part of the budget, that office or position is frozen into 

its designated job group for the fiscal year. 

Certain exceptions to this rule were made by St. 1970, c. 837, "An 

Act Increasing The Salary Ranges of Certain" state employees. Chapter 

837 provided in §1: 

"Notwithstanding any provision of section six of chapter 
four hundred and eighty of the acts of the current year or any 
other provision of law to the contrary, the director of person- 
nel and standardization is hereby authorized and directed to 
reallocate . . . (certain) positions in the general salary 
schedule of the commonwealth to . . . (certain higher) job 
groups ..." 

Of course the Legislature had the power to assign by special act the 
particular positions listed in c. 837 to the new job groups on a permanent 
basis regardless of the provisions of G.L. c. 30, §45. See Boston Elev. 
Ry v. Commonwealth, 310 Mass. 528, 551. However, a special act 
should not be interpreted as amending or otherwise affecting the general 
laws unless there is evident a "clear legislative intent" that it do so. See 
Burke v. Gloucester, Mass. Adv. Sh. (1970) 1339, 1341; 1961 Op. A.G. 
98, 100. It is evident from the terms of c. 837 that it was intended as 
merely a special act of temporary application, in order to allow a reallo- 
cation of certain positions to higher job groups for fiscal 1971, even 
though those reallocations had not been considered as part of the budget 
before enactment of the appropriations act. It was not intended either to 
freeze those certain positions permanently into the new job groups or to 
limit the authority of the Director to reallocate those positions to differ- 
ent job groups for a subsequent fiscal year under G.L. c. 30, §45. 

Chapter 837 specifically refers to St. 1970, c. 480, §6 the Appropria- 
tions Act for Fiscal 1971. By its terms, c. 837 amounts to an amendment 
of or supplement to the Appropriations Act, and should be construed as 
applicable only to the fiscal year 1971. See Roccaforte v. Mulcahey, 169 
F. Supp. 360, 363 (D. Mass. 1958). In addition, the Legislature in c. 837 
"authorized and directed" the Director to reallocate the listed positions 
rather than simply declaring the reallocations. It is clear that there was 
no intention on the part of the Legislature to take from the Director the 
authority to reallocate those positions in the future according to the 
usual procedure prescribed in G.L. c. 30, §45. Consequently, no special 
act of the Legislature is necessary for a reallocation of the positions for 
fiscal years subsequent to fiscal 1971. 

Very truly yours, 

Attorney General 

38 P.D. 12 

Number 2 July 8, 1971 

Honorable Neil V. Sullivan 
Commissioner of Education 
182 Tremont Street 
Boston, Massachusetts 02111 

Dear Commissioner Sullivan: 

You have requested my opinion regarding the authority of the De- 
partment of Education (the Department) to require that an applicant 
under G. L. c. 71, § 38G, for a teaching certificate answer certain ques- 
tions and provide certain information. The questions on the certification 
application used by the Department are: 

"1. Have you ever had a teaching certificate revoked or sus- 
pended in any Commonwealth or State at any time? . . . 

"2. Have you ever been dismissed from a teaching or school 
administration position? . . . 

"3. Have you ever been arrested or convicted of any crime (ex- 
cluding minor traffic violations)? . . . N.B. If your answer to 
1, 2 or 3 is 'Yes,' please give full particulars. ..." 

Question 4 asks for references from persons who qualify to give evi- 
dence of the applicant's moral character. 

You state that a certain applicant has challenged the authority of the 
Department to ask these questions on the grounds that questions 1, 2 
and 3 "require an applicant to testify against himself if he has to answer 
in the affirmative," and that question 4 has "no bearing" on the 
applicant's qualifications to teach. You ask whether the Department 
may legally continue to ask the questions. 

For the reasons hereinafter stated, I answer your questions in the af- 

The privilege against self-incrimination is contained in article 12 of the 
Declaration of Rights of the Massachusetts Constitution and in the Fifth 
Amendment to the United States Constitution. The Fifth Amendment 
provides: "No person . . . shall be compelled in any criminal case to be 
a witness against himself ..." The Supreme Court of the United States 
has recently held that federal standards under the Fifth Amendment are 
binding on the states by virtue of the Fourteenth Amendment. Malloy v. 
Hogan, 378 U.S. 1 (1964). The answer to your question, therefore, re- 
quires an examination of federal law. 

Under G. L. c. 71, § 38G, the Department is directed to grant certifi- 
cates to teachers who furnish proof of their qualifications and "sound 
moral character." The granting of a certificate is a prerequisite to em- 
ployment as a public school teacher. Consequently, the granting of a 

P.D. 12 39 

teaching certificate is relevant to two lines of federal cases, concerning, 
respectively, constitutional rights of applicants for, or possessors of, a 
professional certification (usually attorneys), and the constitutional 
rights of public employees. 

In two recent cases, Gardner v. Broderick, 392 U.S. 273 (1968), and 
Uniformed Sanitation Men's Assn. v. Commissioner of Sanitation, 392 
U.S. 280 (1968), the United States Supreme Court held that a public 
employee may not be discharged for his refusal to answer questions 
which might tend to incriminate him, unless those questions specifically, 
directly and narrowly relate to the performance of his official duties. In 
Spevack v. Klein, 385 U.S. 511 (1967), the Supreme Court held that an 
attorney may not be disbarred for asserting his privilege against self- 
incrimination. The logical extention of these decisions is that a state may 
not refuse public employment or professional certification to an appli- 
cant because of his assertion of the privilege. See Spevack v. Klein, 
supra, at 521 (Harlan, J., dissenting). See also Baird v. State Bar of 
Ariz., 401 U.S. 1 (1971); In re Stolar, 401 U.S. 23 (1971); Law Students 
Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154 (1971) 
(three cases concerning authority of states to require applicants for ad- 
mission to the bar to furnish information arguably protected by First 
Amendment rights to free speech, belief and association). 

However, the privilege against self-incrimination may only be invoked 
with regard to questions which pose a real danger of "incrimination," 
that is, questions the answers to which will show or tend to show that 
the person answering is guilty of a crime for which he is still open to 
punishment. Ullmann v. United States, 350 U.S. 422, 430-431, 438-439 
(1956). None of the questions on the certification poses such a danger to 
an applicant. It is not a crime or evidence of a crime to have been dis- 
missed from a teaching position or to have had a teaching certificate re- 
voked or suspended. The fact of a prior conviction for crime does not 
constitute evidence upon which a new prosecution for crime could be 
based. (In fact, it is, except for very limited instances, inadmissible as 
evidence in a trial for a subsequent offense.) 

The recent case of In re Stolar, 401 U.S. 2, 3 (1971), concerned the 
propriety of the requirement that an applicant for the bar examination in 
Ohio answer certain questions concerning organizations to which he be- 
longs or has belonged. The decision concerns primarily First Amend- 
ment freedoms not here relevant. However, the Supreme Court stated 
that Ohio had "a legitimate interest in determining whether an applicant 
has 'the qualities of character and the professional competence requisite 
to the practice of law,' " and that the state's interest was served by a 
questionnaire which inquired, among other things, as to the applicant's 
former employers and his criminal record, and required character refer- 
ences. On the same day, the Court held in Law Students Civil Rights 
Research Council, Inc. v. Wadmond, 401 U.S. 154, 159-160 (1971), that 
there was no constitutional infirmity in New York's requirement that an 

40 P.D. 12 

applicant for admission to the bar possess "the character and general 
fitness requisite for an attorney," and that an applicant submit affidavits 
of persons capable of testifying to his moral character. The state's in- 
terest in the sound moral character of its teachers is as important as its 
interest in the character of its attorneys. See Adler v. Board of Educ, 
342 U.S. 485, 493 (1952); Beilan v. Board of Educ, 357 U.S. 399, 406 
(1958); Shelton v. Tucker, 364 U.S. 479, 485 (1960). Consequently, the 
Department may constitutionally require an applicant for certification to 
supply the information requested in questions 1 through 4 on the applica- 

Very truly yours, 

Attorney General 

Number 3 July 21, 1971 

Honorable John F. X. Davoren 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion on certain questions propounded by 
representatives of the city and town clerks of the Commonwealth. The 
questions relate to persons between the ages of 18 and 21, both students 
and non-students, who seek to register to vote in Massachusetts cities 
and towns where they presently live. The hypothetical situations which 
have been presented to me include the following: (1) students residing in 
dormitory residences who are supported by their parents; (2) students 
residing in dormitory residences who are self-supporting; (3) students re- 
siding in apartments or other non-college residence facilities, both de- 
pendent upon their parents and self-supporting; and (4) non-students 
who have left their parents' homes and are either dependent upon their 
parents or self-supporting. 

First, it is assumed in all cases that the student or non-student, as the 
case may be, seeks to register to vote in a community other than where 
his or her parents reside. Secondly, the cases which have been pre- 
sented to me include persons whose parents reside within the Common- 
wealth and cases where parents reside in another state. For the purposes 
of the discussion which follows, it is immaterial whether the parents re- 
side within Massachusetts or elsewhere. Finally, it is also assumed that 
the student or non-student, as the case may be, is a citizen of the United 
States either by birth or naturalization. 

While I would ordinarily decline to answer questions propounded by 
municipal officials, even though presented by the head of a state agency 
or a constitutional officer (Compare Op. Atty. Gen'I 1969-1970, No. 37, 
June 30, 1970), the questions posed appear to be of general applicability 

P.D. 12 41 

and are recurring. In addition, there are presently pending in the United 
States District Court for the District of Massachusetts three suits raising 
questions analogous to those presented by your request {Garrett v. 
Larkin, et al., Civil Action No. 71-651-W, Vance et al. v. Board of 
Election Commissioners, Civil Action No. 71-1229-F and Monroe v. 
Board of Election Commissioners of Cambridge, Civil Action No. 
71-1442-F). Since I am required to defend in those cases, inasmuch as 
you, in your official capacity, are a defendant in the cases, and because 
diversity of answers to your questions would create "a problem of 
state-wide importance" (see 1968 Op. Atty. Gen'l 129, 130), I proceed 
to answer the questions presented in the "hope that these views will 
bring about consistent application [of the principles applying to voter 
registration] throughout the Commonwealth." (Id.) 

The answers to these questions require examination of federal and 
state constitutional provisions, as well as of a number of court decisions 
and advisory opinions. 


The Twenty-sixth Amendment to the Constitution of the United 
States, recently ratified by three-fourths of the states, provides in sec- 
tion 1 that "The right of citizens of the United States, who are eighteen 
years of age or older, to vote shall not be denied or abridged by the 
United States or by any state on account of age." The states, however, 
"have long been held to have broad powers to determine the conditions 
under which the right of suffrage may be exercised." Lassiter v. 
Northampton Election Bd., 360 U.S. 45, 50; Evans v. Cornman, 398 
U.S. 419, 422. Included among them is the "power to impose reasonable 
residence restrictions on the availability of the ballot." Carrington v. 
Rash, 380 U.S. 89, 91. Under the Constitution of Massachusetts, 
"Every citizen of nineteen 1 years of age and upwards . . . who shall 
have resided within the town or district in which he may claim a right to 
vote, six calendar months next preceding any election . . . shall have a 
right to vote in such election . . . and no other person shall be entitled to 
vote in such election." The requirement that the applicant "shall have 
resided" in the town for six months has traditionally been construed as 
requiring that the applicant have established his "domicil" in the town. 
Opinion of the Justices, 5 Met. 587, 588. The concept of "domicil" is 
utilized for many purposes, including property tax liability and probate 
jurisdiction of wills 2 and the custody of children. Some of the stricter re- 
quirements of "domicil" pertaining to those areas have not always been 
applied when the question concerns "domicil" for voting purposes. See 
Putnam v. Johnson, 10 Mass. 487, 501. In general, "domicil" means ac- 
tual residence in the town, coupled with an intention to remain indefi- 
nitely. See Putnam v. Johnson, supra, at 500-501; Opinion of the Jus- 

1 Since ratification of the Twenty-sixth Amendment the number "eighteen" should be read in place of "nineteen." 

2 See. e.g., Texas v. Florida, 306 U.S. 398, 413-428. 

42 P.D. 12 

tices, supra, at 590. See also Carrington v. Rash, supra, at 94. The in- 
tention to remain indefinitely does not mean an intention to stay forever, 
but merely that there is no present intention of leaving. Putnam v. 
Johnson, supra. 

The recent extension of the franchise to citizens between eighteen and 
twenty-one years of age presents some difficulty in establishing whether 
an applicant of that age is entitled to register. Although some disabilities 
of minors have recently been removed from those over eighteen, see St. 
1971, c. 253 (lowering the age at which a person may make a campaign 
contribution in excess of twenty-five dollars to eighteen years); St. 1971, 
c. 255 (males may marry without parental consent at age eighteen); and 
St. 1971, c. 291 (person may make a will at age eighteen), they remain 
minors until they are twenty-one or otherwise emancipated. It is the 
general rule that "[OJrdinarily, 'the domicil of a legitimate minor child is 
that of the father.' Glass v. Glass, 260 Mass. 562, 564. Restatement: 
Conflict of Laws, § 30." Green v. Green, 351 Mass. 466, 467-468. It ap- 
pears, however, that an unemancipated minor may establish his own 
domicil with the assent, express or implied, of his parents or guardian. 
See Kirkland v. Whately, 4 Allen 462. An emancipated minor of course 
has the power to establish his own domicil. Restatement: Conflict of 
Laws, § 31. If these principles were applied to voter registration, an un- 
emancipated minor over eighteen would be restricted to his father's vot- 
ing residence unless his father gave his assent to a change of residence. 

As noted above, however, the rules pertaining to domicil for tax or 
probate purposes may not always prevail where domicil for voting pur- 
poses is concerned. Putnam v. Johnson, 10 Mass. 487, 501. The pur- 
poses of the domicil requirement are to afford the registrars of voters the 
opportunity to ascertain the qualifications of the voter, and to prevent 
the possibility of fraud through multiple voting. Id. at 502. To restrict 
the ability of an unemancipated minor, over the age of eighteen, to 
choose his domicil for voting purposes would serve neither of these pur- 
poses. Moreover, to restrict the eighteen year old's right to choose his 
residence for voting purposes, a right possessed by voters over twenty- 
one years of age, would be to "abridge" his right to vote "on account of 
age," in contravention of the Twenty-sixth Amendment. Consequently, 
it must be concluded that, for purposes of registering to vote, a minor 
either emancipated or unemancipated over the age of eighteen years has 
the right to establish his own domicil with or without the consent of his 
parents or guardian. 


The determination whether a student from another city or state, who 
has taken up residence at or near the college or university he attends, 
has made his new residence his domicil for voting purposes is, as in all 
cases of recently moved registrants, a question of fact, to be determined 
by all the cirumstances of the case. Opinion of the Justices, 5 Met. 587. 
As noted above, the basic elements of domicil are the actual establish- 

P.D. 12 43 

ment of residence in the city or town, and an intent to remain there in- 
definitely. Once a student living at or near a college or university has 
shown that he has resided in the city or town "in which he may claim a 
right to vote, six calendar months next preceding any election of gover- 
nor, lieutenant governor, senators, or representatives," 3 and has de- 
clared his intention to stay in the city or town for an indefinite period, he 
has shown himself eligible to register as a voter. (Am. Art. Ill, Mass. 

As in the case of any other applicant for registration, of course, the 
circumstances may be such as to show that the student applicant in fact 
lacks the necessary intent to establish his domicil in the town. However, 
the fact that he is a student, residing in the town for the purpose of pur- 
suing a course of studies for a number of years, should place on him no 
greater burden of proving his domiciliary intent. Whether he prefers or is 
required to reside in a college dormitory rather than in privately pur- 
chased or leased premises is of no real utility in determining his intent, 
see Putnam v. Johnson, supra, at 490; and while in 1843 great weight 
was placed in the Opinion of the Justices, supra, upon whether the 
student's father was supporting him while at college, this factor is of lit- 
tle relevance today. It is common for parents to contribute to the sup- 
port of their children attending college. Yet it is also common today that 
students upon graduation do not return to their home towns. Many de- 
cide to stay in the communities where their colleges are located; many 
others move to different cities and different parts of the country, accord- 
ing to the opportunities for employment or post-graduate studies. It may 
have been the general habit for students in 1843 to return home after 
graduation; if their families paid for their education, there may have 
been even more reason for assuming an intention to return. However, in 
view of the mobility of persons and families in today's society, and of 
the indefinite nature of the plans of college undergraduates generally, the 
same cannot be said today. Perhaps most college students do return 
home at graduation, but an intention on the part of a college student to 
return to his former home cannot be presumed on the basis of his 
family's financial support. 

There may exist fear that some small communities with a large per- 
centage of students in the population may be "taken over" by student 
voters, who may then implement "radical" programs. The possibility of 
such a "take-over", however, would depend largely upon how many 
students were willing to give up their right to vote in their communities 
of origin. Moreover, the fear that student-voters would tend to take rad- 
ical measures may be groundless. See Legislative History on Twenty- 
sixth Amendment U.S. Code Cong. & Ad. News, 92d Cong. 1st Sess., 
364 (Adv. Sh. No. 3, April 25, 1971). At any rate, students over the age 
of eighteen years, if they have the intention of making the college town 
their home indefinitely, "have a right to an equal opportunity for politi- 

3 or any other state, city or town election. See G. L. c. 51 , § I. 

44 P.D. 12 

cal representation . . . 'Fencing out' from the franchise a sector of the 
population because of the way they may vote is constitutionally imper- 
missible." Carrington v. Rash, 380 U.S. 89, 94; Evans v. Cornman, 398 
U.S. 419,423. 


In summary, no definitive answer can be given to the question 
whether the persons described in the above hypothetical situations are 
entitled to register to vote in the cities or towns where they presently 
reside. The resolution of each case will depend upon the particular facts 
of that case. While I have been urged to provide the various Boards of 
Registrars of Voters and Election Commissioners with general 
guidelines to aid them in resolving questions in this area, I deem it inap- 
propriate to do so. Each case will, of course, be different, and the vary- 
ing factual situations cannot be identified with any degree of certainty. 
Any attempt to treat exhaustively the different situations which may 
arise, will, of necessity, fail because some situations will be omitted or 
overlooked. Moreover, I deem it unwise to commit myself in advance to 
the resolution of factual problems which may never occur, and I con- 
sider it the better course to leave myself free to resolve situations and 
cases which are presented to me at such time as resolution is required. 

There can be stated, however, certain general principles which may 
be of aid in resolving particular cases as they arise. First, the fact that a 
minor over eighteen years of age is not emancipated, financially or 
otherwise, from his parents has no bearing on his right to choose his 
own domicil for voting purposes. The fact that such a minor, whether or 
not a student, may be supported in whole or in part by his parents is in 
itself insufficient reason to refuse to register an otherwise qualified ap- 
plicant. Second, the fact that a minor voter who is a student resides in a 
dormitory, fraternity house or other college residence is of no relevance. 
The basic question to be answered is whether he intends to return to his 
former home as soon as his course of studies is completed. The fact that 
he may find residence in a dormitory or fraternity house more conven- 
ient or less expensive than renting an off-campus apartment does not 
answer that question. 

In conclusion, the decision whether a minor voter in one of the above 
hypothetical situations is entitled to register to vote should be reached in 
the same manner as a like decision regarding an applicant for registration 
who is over twenty-one years of age and has recently moved into the 
city or town. And, although the 1843 Opinion of the Justices, to which I 
have referred, does state that "stronger facts and circumstances must 
concur to establish the proof of change of domicil in the . . . case [of a 
student residing at an educational institution]" {Opinion of the Justices, 
supra, 5 Met. 587, 590), that statement cannot be considered valid today 
in the light of the Twenty-sixth Amendment to the Federal Constitution. 

Very truly yours, 

Attorney General 

P D 12 

Number 4 September 1. 1971 

Honorable Neil V. Sullivan 
Commissioner of Education 
182 Tremont Str. 

etts 02111 

Dear Commissioner Sullivan: 

You have requested my opinion with respect to the legality of a 
shared time and dual student enrollment arrangement, commonly known 
as the 'Marlborough Plan."* entered into between the City of Marl- 
borough school department and the Immacula: e Z nception Parish in 
Marlborough. Specifically, you as 

1 ) Does the shared time program as operational in the city of 
Marlborough with the I mbte Conception Parish meet 

the p :ns of the :itution of the Commonwealth of 


2 If your answer to Question 1 is in the affirmative, does the 
expenditure of public money for that portion of the educa- 
tional program under the complete control and jurisdiction of 
the Marlborough v Committee as contained in the en- 

closed written plan meet the requirements of Chapter 70 of 
the General L. r reimbursement by the Commonwealth 

of Massachuse 
For the n s hereinafter stated, it is my opinion that such a pro- 
.m contravenes the pre sions ol Article 46 of the Articles of 

Amendment to the M nstitution. It is therefore unnece 

nd question. And. although you do not raise the 

question. 1 deerr. :: appropriate inion with respect to 

the Federal issues an in the light of recent decisions of 

the Supreme Court of the Unite. v ites 

According the information you provide, the rlborough Plan" 

operates as folk x DO per school ±e C .borough 

ool department leases the entire floor cc is § ring of four class- 

rooms, corridor space. ~id an administration office) of a 

single school building presently design :he "Shared Time 

School" anc i by the Immaculate Conception Parish. From S 5 

- DO p.m. on each schoc - cased ■ as the puhhc 

schoc - E c Dr, is under the c complete and exclu- c ^ntrol of the 

Marlborough School Committee and the Superintendent of the Marl- 

rough Public Schools. Immaculate :ion Parish charges the 

Marlborough School Department one-third of the total building expendi- 
ture- such items as heat, light, maintenance 

tarian doctrine is taught in the public school sector during the regular 
schoc nd all symbols of a religious nature have been removed from 

thi^ si On the sec nd floor of the buildir^ s - ed the private 

-. over which the Immaculate School Parish exercises com- 
plete com 

46 P.D. 12 

Under the plan you describe, provision is made for a dual enrollment 
program. Students in grades one through four residing within the City of 
Marlborough may elect to enroll in the public school system full time by 
attending the public school for one segment of the school day and 
another public school for the other required segment of the school day. 
In the alternative, students may enroll in the public school system and 
the parochial school system. 

These two systems operate in a "platoon" type manner. During the 
morning hours, approximately one-half of the 270 students attend the 
public school sector while the second half attend the private school sec- 
tor. Those students attending the private school sector in the morning 
transfer downstairs to the public school sector to complete the remain- 
der of the school day. Those students attending the public school sector 
in the morning may either transfer to the upstairs private school sector 
for the afternoon or, if they desire, may attend a nearby public school, 
the curricula of which has been correlated to allow for this alternative. 

Under either system, the school schedules comply with the required 
number of hours per school day as mandated by the Board of Education. 
The public school sector is subject to the same policies and regulations 
governing all other public schools operated by the Marlborough School 
Department, and the private school sector of the "Shared Time" School 
has voluntarily adopted the same administrative procedures as those 
prescribed for the public school sector. You further state that four lay 
teachers, selected and employed by the Marlborough School Depart- 
ment, provide instruction in spelling, mathematics, science, art, music 
and social studies in the public school sector. Four religious teachers, 
working exclusively in the private school sector for the entire length of 
the school day, provide instruction in phonetics, reading, English, pen- 
manship and religion. 

I proceed first to the Federal constitutional issue which arises under 
the Establishment Clause of the First Amendment to the Constitution of 
the United States. While I would ordinarily confine myself to the legal- 
ity of the plan under the Massachusetts Constitution, recent decisions of 
the Supreme Court of the United States clearly indicate that the plan 
contravenes the Establishment Clause as well. In Lemon v. Kurtzman, 
39 L.W. 4844, Mr. Chief Justice Burger, writing for a unanimous Court, 
struck down Pennsylvania and Rhode Island statutory programs which 
provided for the purchase of secular educational services and salary 
supplements for teachers in non-public schools. Commenting on the 
legislative precautions taken in enacting both programs, the Chief Jus- 
tice stated: 

"The two legislatures, however, have also recognized that 
church-related elementary and secondary schools have a sig- 
nificant religious mission and that a substantial portion of 
their activities are religiously oriented. They have therefore 
sought to create statutory restrictions designed to guarantee 

P.D. 12 47 

the separation between secular and religious educational 
functions and to ensure that State financial aid supports only 
the former. All these provisions are precautions taken in can- 
did recognition that these programs approached, even if they 
did not intrude upon the forbidden areas under the Religion 
Clauses. We need not decide whether these legislative pre- 
cautions restrict the principal or primary effect of the pro- 
grams to the point where they do not offend the Religion 
Clauses, for we conclude that the cumulative impact of the 
entire relationship arising under the statutes in each State in- 
volves excessive entanglement between government and re- 
ligion." 39 L.W. 4844,4847. 

An examination of the Marlborough Plan shows the same excessive 
entanglement between government and religion disapproved in Lemon v. 
Kurtz/nan, supra. The operation of the plan requires a "platoon" sys- 
tem; the non-public and public school programs, in courses and hours, 
have to be correlated; the non-public school rents quarters to the public 
school authorities; the heat, light and maintenance charges must be 
computed and divided. Government surveillance of the total operations 
necessarily follows, and such surveillance, in the words of the Chief Jus- 
tice, is sure to "give rise to entanglements between church and state." 
Lemon v. Kurtzman, supra, at 4849. 

In the same week as it decided Lemon, the Supreme Court affirmed a 
District Court decision invalidating Connecticut's Nonpublic School 
Secular Education Act. Johnson v. Sanders, 319 F. Supp. 421 (D. 
Conn.), affd sub. nom. Sanders v. Johnson, 40 L.W. 3001. In that case, 
the District Court had stated: 

"We conclude that this statute, with a primary effect of 
turning over formal and financial sponsorship as well as sub- 
stantial administrative control of all secular parts of parochial 
schools to the State, while permitting religious aspects of 
these institutions to remain unchanged, unconstitutionally 
advances religion." 319 F. Supp. 421, 435. 

Given the reasoning and holdings in Lemon v. Kurtzman and Sanders 
v. Johnson, I am compelled to conclude that the Marlborough Plan con- 
travenes the Establishment Clause of the First Amendment. 

With respect to the State constitutional issue, your question arises in 
the context of a continuing decline in nonpublic school enrollment within 
the Commonwealth, particularly in Catholic schools. Nonpublic Educa- 
tion in Massachusetts, The Report of the Massachusetts Special Com- 
mission to Study Public Financial Aid to Nonpublic Primary and Sec- 
ondary Schools and Certain Related Matters, Vol. 1, at 1-5 (1971). 1 The 
consequences of this trend, if continued, would include "some tempo- 
rary or perhaps permanent disruption in the public schools themselves" 
and "a loss in the considerable contribution which non-public schools 

1 Hereinafter referred to as "The Report." 

48 P.D. 12 

make to the life of the Commonwealth." The Report, Vol. 1, at 6. A 
more significant result, perhaps, would be the impact of higher costs to 
the taxpayers in the Commonwealth, which is estimated as high as 
$387,000,000 for the next five years. The Report, Vol. 1, at 6, 28. 

Similar circumstances in other states have prompted the enactment of 
statutes and adoption of plans which have been only partially successful 
when subjected to challenge in state courts of last resort under various 
state constitutional provisions. 

See, e.g., Board of Education for Ind. School Dist. No. 52 v. Antone, 
384 P. 2d 911 (Okl. 1963) (program of busing nonpublic school students 
in public school owned and operated school buses held invalid); Spears 
v. Honda, 449 P. 2d 130 (Hawaii 1969) (statute providing public funds for 
bus transportation subsidies to nonpublic school students held invalid); 
State ex rel. Chambers v. School District No. 10, All P. 2d 1013 (Mont. 

1970) (levy for or expenditure of funds for employment of teachers to 
provide secular instructions in parochial schools held invalid); Seegers 
v. Parker, 241 S.2d 213 (La. 1970) (statute providing for purchase by 
state of secular educational services from teachers employed by nonpub- 
lic schools held invalid); Hartness v. Patterson, 179 S.E.2d 907 (S.C. 

1971) (statute providing public funds for tuition grants to students attend- 
ing non-public institutions of higher learning held invalid); but, see 
Bowerman v. O'Connor, 247 A. 2d 82 (R.I. 1968) (statute providing for 
textbooks to parochial school students held valid); Opinion of the 
Justices, 258 A. 2d 343 (N.H. 1969) (proposed bills providing divers serv- 
ices and textbooks to students in nonpublic schools held valid); In Re 
Legislature's Request for an Opinion, Etc., 180 N.W.2d 265 (Mich. 
1970) (statute providing for state purchase of educational services in 
secular subjects from nonpublic schools held valid); Americans United 
Inc. v. Ind. School District No. 622, 179 N.W.2d 146 (Minn. 1970) 
(statute authorizing use of public funds to transport children to sectarian 
schools held valid, appeal dismissed, 39 L.W. 3564); Hunt v. McNair, 
177 S.E.2d 362 (S.C. 1970) (statute authorizing issuance of revenue 
bonds for institutions of higher learning held valid, judgment vacated, 39 
L.W. 3564); Nohrr v. Brevard County Educational Fac. Auth., 247 S.2d 
304 (Fla. 1971). 

These and similar decisions which indicate the diversity of opinion in 
the area of aid to nonpublic schools provide scant assistance in resolving 
the question you raise, primarily because of the differing texts of the 
several "anti-aid" constitutional provisions among the several states. As 
stated recently in Opinion of the Justices, 1970 Mass. Adv. Sh. 789, 798, 
"[ojpinions from other states, with different constitutional provisions, 
are not controlling." 2 Therefore, persuasive authority is not provided by 
decisions in those jurisdictions where the language of the constitutional 

( umg this Opinion, the Supreme Court of Louisiana similarly ruled that decisions from Pennsylvania, New 
Hampshire. Rhode Island. Michigan and Maine were inapposite. Seegers v. Parker, supra at 219. 

P.D. 12 49 

provision 3 is interpreted as no more restrictive than the Federal Con- 
stitution, since "the explicit language of article 46, § 2, of the Amend- 
ments, ... is much more specific than that of the First Amendment." 
Opinion of the Justices, supra, at 794. Accordingly, my opinion is based 
upon the specific language of Article 46, § 2 of the Amendments, as in- 
terpreted in light of its history and by the Justices of the Supreme Judi- 
cial Court. 4 

Article 46, § 2 of the Amendments, states in pertinent part: 

"[N]o grant, appropriation or use of public money or prop- 
erty or loan of public credit shall be made or authorized by 
the commonwealth or any political division thereof for the 
purpose of . . . aiding any school . . . whether under public 
control or otherwise, wherein any denominational doctrine is 
inculcated, or any other school . . . which is not publicly 
owned and under the exclusive control ... of public officers 
. . . authorized by the commonwealth or federal authority or 
both ..." 
In Opinion of the Justices, supra, the Justices ruled that a proposed 
bill providing for the purchase by the Commonwealth of secular educa- 
tional services from nonpublic schools in the form of reimbursement not 
exceeding the cost of teachers' salaries, textbooks, instructional materi- 
als and standard educational testing would amount to "aiding" in viola- 
tion of § 2, a result compelled by the "clear and peremptory" and "une- 
quivocal" language of that section. Id. at 795-796. A detailed examina- 
tion of the Debates in the Massachusetts Constitutional Convention of 
1917-1918, which led to the insertion of § 2 in the Constitution, disclosed 
that "[t]here can be no doubt that the explicit language was intentional" 
and "unquestionably was designed to preclude entirely aid to all non- 
public institutions from appropriated public funds with minor exceptions 
not here relevant." Id. at 796, 797. 

Thereafter, in Opinion of the Justices, 1970 Mass. Adv. Sh. 911, the 
Justices also ruled unconstitutional under § 2 a proposed bill which 
would have authorized the annual payment of $100 to each school pupil 
attending an elementary or secondary school in the Commonwealth, in- 
cluding those attending nonpublic schools. The Justices stated that 
"[t]he present bill seems to us to involve an indirect form of aid to non- 
public schools which, if enacted, would have in substance the same 
practical effect as the measure which we recently considered." Id. at 

3 See, e.g., Bowerman v. O'Connor, supra at 83. 

4 1 find unpersuasive two recent decisions upholding shared time programs. In Morton v. Board of Education of 
City of Chicago, 216 N.E.2d 305 (App. Ct. of 111. 1966), the intermediate appellate court did not specifically 
pass upon a state constitutional provision. In In Re Propaal C, 185 N.W.2d 9 (Mich. 1971), the Supreme Court 
of Michigan ruled that a constitutional amendment which denied shared time services to nonpublic school stu- 
dents violated the Equal Protection and Free Exercise Clauses of the United States Constitution. The former 
ground was rejected in Opinion of the Justices, 1970 Mass. Adv. Sh. 91 1, 915-916 (infra). The latter ground was 
expressed in merely conclusory terms (In Re Proposal C. supra at 28-29) and is contrary to the great weight of 
authority. Compare Johnson v. Sanders, 319 F. Supp. 421. 435 (D.C Conn.) (three judge court), affd sub. nom 
Sanders v. Johnson, 40 L.W. 3001. 

50 P.D. 12 

914. 5 Section 2, therefore, has been interpreted to prohibit indirect aid 
(see Spears v. Honda, supra at 137), as if the term "indirect" appeared 
in the text of the constitutional provision. Compare State ex rel Cham- 
bers, supra at 1017. Seegers v. Parker, supra at 216. Hartness v. 
Patterson, supra at 908. 

It is not necessary to conclude, as have some commentators, that 
shared time programs "have no rationale except benefit for church 
schools . . . Kurland, Politics and the Constitution: Federal Aid to 
Parochial Schools, 1 Land & Water L. Rev. 475, 494 (1956). See Bur- 
ton, Public Funds for Public Schools Only, 78 Christian Century 415, 
417 (1961). What was obviously intended by the subject program was a 
practical and direct resolution of the increasing public school crisis re- 
ferred to in The Report mentioned above, recognizing the exigencies of 
the moment. The officials in Marlborough have no doubt undertaken a 
good faith approach keyed to continuing sound education for their young 
citizens while at the same time minimizing the fiscal increases on the 
community. There is, therefore, mutual aid arising from the plan, aid to 
the community and aid to the non-public school. This, however, does 
not create an exception to the clear provision of the Massachusetts Con- 
stitution as interpreted by our Court. I have no alternative but to con- 
clude that the "Marlborough Plan" contravenes Article 46, § 2, for 
many of the same reasons as I have concluded that the plan fosters ex- 
cessive entanglement between government and religion in violation of 
the Federal Constitution. 

While I am mindful of the economic dislocations which may result 
from this opinion, as related above, my sole consideration is one of law, 
whether the plan is valid under the Constitution of the Commonwealth. 
The Commonwealth cannot finance religious institutions, even with the 
assurance that such a program will effect a smaller over-all tax burden or 
obviate increasingly onerous state responsibilities. 

As stated by the Justices: 

"We are faced with the language of art. 46, § 2, as it was 
adopted in 1917 and as it has remained unchanged for over 
fifty years. Those who opposed the measure in the Conven- 
tion and when it was submitted to the people for adoption 
challenged its wisdom. The Debates, however, reveal no 
doubt as to the meaning and effect of the language. It is still 
applicable despite changed conditions and probably some- 
what different public attitudes. The existence of an 
emergency . . . cannot alter the unequivocal terms of art. 46, 
§ 2. It constitutes a binding constitutional restraint upon the 
General Court and upon us until and unless it is changed by 
some method permitted by the Constitution of the Common- 

s Because of these recent opinions, 1 discount that portion of Op. Ally. Gen., June 13, 1966, at 371, in which a 
former Attorney General stated "I know of no . . . constitutional provision applicable to this Commonwealth 
that . . prohibits a so-called 'shared time' program, under which a student attends a public school for certain 
courses and a non-public . . . school for others." 

P.D. 12 51 

wealth." Opinion of the Justices, 1970 Mass. Adv. Sh. 789, 

Very truly yours, 

Attorney General 

Number 5 September 2, 1971 

Honorable Cleo F. Jaillet 

Commissioner of Corporations and Taxation 

Chairman, State Tax Commission 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Jaillet: 

You have requested my opinion on several questions relating to action 
taken by the Commissioner of Education in ordering school aid funds 
due to be distributed to the cities of Boston and Springfield withheld 
until the cities submit plans, acceptable to the State Board of Education, 
to eliminate racial imbalance in the cities' schools. It appears from your 
letter that the State Tax Commission has notified all cities and towns of 
the Commonwealth of the estimated amounts such cities and towns are 
to receive in 1971 pursuant to G. L. c. 58, § 18A and under reimburse- 
ment and assistance programs. Such notification was made on June 24, 
1971. Prior to that date, on March 29, 1971, approximately twenty-five 
percent of certified school aid funds were distributed to Massachusetts 
cities and towns, including Boston and Springfield, as required by G. L. 
c. 58, § 18A(b) (4). The remaining distribution is subject to an order of 
the Commissioner of Education that the funds are not to be released 
until his approval is obtained. 

Accordingly, you pose the following questions: 

"1. So long as the Commissioner of Education continues to re- 
quire that certified school aid funds be withheld from Boston and 
Springfield, are the assessors of each of these cities authorized to 
use such blocked funds as estimated receipts under G. L. c. 59, § 
23, in establishing their city's 1971 tax rate? 

4 '2. If such blocked funds are used in establishing the 1971 tax 
rates of these cities, is the Commission authorized or required to 
treat said funds as proper estimated receipts for 1971 in making its 
determination with respect to the approval of other estimated re- 
ceipts under G. L. c. 59, § 23? 

"3. If such blocked funds are not distributed to Boston and 
Springfield during the 1971 calendar year, are these cities entitled 
to receive these 1971 distributions whenever, in 1972 or later, the 
restraining order of the Commissioner of Education is lifted?" 

52 P.D. 12 

I am advised that the State Board of Education on August 31. 1971 
voted to approve the racial imbalance plan submitted by the Boston 
School Committee and that the Commissioner of Education intends to 
release the funds which have been certified but not distributed to the 
City of Boston. I therefore proceed to answer your inquiry as it relates 
to the City of Springfield, and. for the reasons hereinafter stated. I an- 
swer your questions one and two in the affirmative. Because question 
three is premature, since it has not been established that the funds will 
not be released in calendar year 1971. I beg to be excused from answer- 
ing that question. 

The duties of the State Tax Commission with respect to determining 
the amounts due cities and towns under G. L. c. 58. § 18A and under 
local reimbursement and assistance programs are set forth in G. L. c. 

58. § 25A. That section provides: 

'"The commission shall ascertain and determine the amount due 
each city and town under section eighteen A and the 
commonwealth's share of local reimbursement and assistance pro- 
grams as authorized by law and in the amounts appropriated by the 
general court, including, but not limited to. school building con- 
struction, school transportation, school lunches, educational pro- 
grams, teachers' retirement pensions, veterans' benefits, public 
health and housing and urban renewal subsidies and shall notify the 
assessors of such city or town thereof. Annually on or before 
January thirty-first, each department, commission, board or other 
agency of the commonwealth administering any local reimburse- 
ment or assistance program included under this section for which 
the commission is required to estimate the amount to be received 
by each city or town shall, upon the basis of information then 
available to it. estimate and certify to the state tax commission the 
amount each city or town is to receive from the commonwealth 
under such program during such calendar year. Said assessors, in 
determining the rate of taxation to be levied upon taxable property 
for the year, shall include in the estimated receipts lawfully appli- 
cable to the payment of expenditures the aforesaid amounts." 

The duties of municipal assessors, with respect to setting the tax rates 
for the cities and towns of the Commonwealth, are set out in G. L. c. 

59. § 23. which provides: 

The assessors shall annually assess taxes to an amount not less 
than the aggregate of all amounts appropriated, granted or lawfully 
expended by their respective towns since the last preceding annual 
assessment and not provided for therein, of all amounts required 
by law to be raised by taxation by said towns during said year, of 
all debt and interest charges matured and maturing during the year 
and not otherwise provided for. of all amounts necessary to satisfy 
final judgments against said towns, and of all abatements granted 
on account of the tax assessment of any year in excess of the over- 
la} of that year and not otherwise provided for: but such assess- 

P.D. 12 53 

ments shall not include liabilities for the payment of which towns 
have lawfully voted to contract debts. The assessors shall deduct 
from the amount required to be assessed (a) the amount of all esti- 
mated receipts of their respective towns lawfully applicable to the 
payment of the expenditures of the year, excluding sums to be re- 
ceived from the commonwealth or county for highway purposes 
and excluding estimated receipts from loans and taxes, but includ- 
ing estimated receipts from the excise levied under chapter sixty A 
and receipts estimated by the commission under section twenty- 
five A of chapter fifty-eight (b) the amount of all appropriations 
voted from available funds for the purpose of deduction, and (c) 
the amount of all other appropriations voted from available funds. 
Deductions made by the assessors under any provision of this sec- 
tion shall not be subject to the approval of the commission or 
commissioner, as the case may be; provided, however, that deduc- 
tions made under clause (a) on account of estimated receipts, other 
than those estimated by the commission, shall not exceed the 
aggregate amount of actual receipts received during the preceding 
financial year from the same sources, except with the written ap- 
proval of the commission; and provided, further, that deductions 
made under clauses (b) and (c) shall not exceed the sums certified 
to the assessors and the commissioner by the director of accounts 
after such examination of the accounts of the town as he may deem 
proper, as the amounts of available funds on hand on the preceding 
January first. Said director shall promulgate and from time to time 
revise rules and regulations for determining the available funds of a 
town in accordance with established accounting practices of said 
bureau of accounts. This section shall not be construed to require 
any approval for the use, application, transfer, appropriation or 
expenditure of any funds or accounts provision for which use, ap- 
plication, transfer, appropriation or expenditure is made under any 
other general or special law, beyond such approval or approvals as 
are required by such other general or special law. 

"In cities in determining the amount of available funds which the 
assessors may be required to deduct under the provisions of 
clauses (b) and (c) of this section such funds shall constitute the 
amounts certified by the director of accounts as available on 
January first of the the current year, in accordance with the provi- 
sions of this section, together with the total of the proceeds from 
the sale of tax title possessions and the receipts from tax title re- 
demptions, in addition to the real and personal taxes of prior years 
collected or received between said January first and the last day of 
the month preceding the month in which the tax rate is determined, 
but in no event later than March thirty-first of the said current 

"The auditor or similar accounting officer in each city shall cer- 
tify as soon as may be to the board of assessors the total of the 

54 P.D. 12 

proceeds from the sale of tax title possessions and receipts from 
tax title redemptions, in addition to the total real and personal 
taxes of prior years collected from January first of the current year 
up to and including March thirty-first of the same year. 

"If prior to May tenth in any year, the assessors of any city ex- 
cept Boston shall not have received from the city clerk a certificate 
under section fifteen A of chapter forty-one of the appropriations 
voted for the annual budget for said year and if it appears to them, 
after inquiry of the city clerk, that such appropriations have not 
been voted, they shall forthwith assess a tax for said year an 
amount equal to the aggregate appropriations voted for the annual 
budget for the next preceding year. 

"Notwithstanding the provisions of any general or special law, 
the provisions of this section, so far as apt, shall apply to fire, 
water and improvement districts." 

Finally, G. L. c. 15, § 11 sets forth the powers of the Commissioner 
of Education with respect to ordering that school aid funds not be distri- 
buted to cities and towns. That section provides, in pertinent part: 

"If, following the receipt of notification from the board of educa- 
tion that racial imbalance, as defined in section thirty-seven D of 
chapter seventy-one, exists, a school committee or regional school 
district committee does not show progress within a reasonable time 
in eliminating racial imbalance in its schools the commissioner of 
education shall not certify the amount of state aid for such city or 
town or for such towns which are members of such regional school 
districts, as required by section five of chapter seventy, and the 
school building assistance commission upon receipt of notice from 
said board that racial imbalance exists shall not approve any pro- 
ject for school construction for such city, town or regional school 
district under chapter six hundred and forty-five of the acts of nine- 
teen hundred and forty-eight, as amended, and the commissioner of 
education may notify the commissioner of corporations and taxa- 
tion and the comptroller to hold such funds as have been so cer- 
tified under said section five but have not been disbursed. The 
commissioner of education may thereafter upon receipt of a plan 
acceptable to the board of education notify the commissioner of 
corporations and taxation and the comptroller to pay any such 
withheld funds to such city or town in such amounts and at such 
times as he may designate, and the school building assistance 
commission upon receipt of notice from said board that a plan ac- 
ceptable to it has been received may approve such projects." 
In the instant case, the funds due the City of Springfield under G. L. 
c. 58, § 18A and local reimbursement and assistance programs have 
been computed, that computation has been forwarded to the State Tax 

>.D. 12 55 

Commission, the Commission has included said amount on Form C.S. 
(the so-called "Cherry Sheet"), and twenty-five percent of the funds 
have in fact been distributed to the City. As I have noted, the remaining 
funds are in the hands of the Treasurer and Receiver-General and are 
subject to the further order of the Commissioner of Education. 

General Laws, c. 59, § requires that local assessors deduct "from the 
amount required to be assessed (a) the amount of all estimated receipts 
of their respective towns . . . including receipts estimated by the [state 
tax] commission under section twenty-five A of chapter fifty-eight ..." 
There is no question that the amount of $5,142,242.84 representing un- 
distributed 1971 school aid which is presently being withheld by the 
Treasurer and Receiver-General has been "estimated" to be due the 
City of Springfield, and the Commissioner of Education's action order- 
ing it withheld has not changed that characterization. In this regard, the 
statute under which the Commissioner of Education acted, G. L. c. 15, 
§ II, clearly distinguishes between (1) funds which have not been cer- 
tified and (2) funds which have been certified but not distributed. As to 
the former, the statute provides that the Commissioner "shall not certify 
the amount of state aid for such city ..." and, as to the latter, the sta- 
tute provides that the funds so certified shall not be distributed unless 
and until ordered by the Commissioner of Education. We are here deal- 
ing with the later category. 

It was within the province of the Legislature to amend G. L. c. 59, § 
23 to provide that estimated receipts which had been ordered withheld 
pursuant to G. L. c. 15, § II could not be deducted by local assessors in 
determining the revenue required to be raised by the local tax rate. Since 
the statute is silent on this point, I conclude that the assessors are re- 
quired to deduct the estimated receipts, without regard to whether they 
are being withheld pursuant to G. L. c. 15, § II. 

Since I have answered your first question in the affirmative, it follows 
that an affirmativee answer is required to your second question. The 
blocked funds are "proper estimated receipts" and must be considered 
as such by the State Tax Commission "with respect to the approval of 
other estimated receipts under G. L. c. 59, § 23." 

For the reasons stated supra, I ask to be excused from answering 
your third question, adding only that I am willing to entertain the ques- 
tion should such funds not be released during calendar year 1971. 

Very truly yours, 


Attorney General 

6 P.D. 12 

slumber 6 September 21, 1971 

ionorable David J. Lucey 

legistrar of Motor Vehicles 

00 Nashua Street 

Boston, Massachusetts 02114 

)ear Registrar Lucey: 

Your predecessor requested my opinion whether he was authorized to 
erminate a suspension of a license to operate motor vehicles, which had 
>een imposed under the authority of General Laws, Chapter 90, section 
2A, where the licensee has obtained a discharge in bankruptcy. For the 
easons hereinafter stated, I answer the question in the affirmative. 

General Laws, Chapter 90, section 22A provides: 

"The registrar, if he is satisfied by such evidence as he may re- 
quire that the defendant in an action brought in the commonwealth 
to recover damages for injury to property arising out of the use, 
operation or maintenance on the ways of the commonwealth of a 
motor vehicle or trailer has failed, for sixty days after the rendition 
thereof, to satisfy in full a judgment against him in such action, 
shall suspend any license to operate motor vehicles issued to him 
under this chapter, or his right to operate such vehicles or, if the 
defendant is a partnership, a trust, or a corporation, shall suspend 
all certificates of registration issued to it under this chapter; and 
the registrar shall not terminate any such suspension, or renew or 
issue any such license to any such person, or renew or issue such 
certificates of registration to such corporation, partnership or trust 
until he is satisfied as aforesaid that said judgment has been fully 
satisfied or that the judgment creditor has released or discharged 
the judgment debt. This section shall not apply in any case if the 
registrar is satisfied as aforesaid that the defendant was, at the time 
such injury occurred, insured against loss or damage on account of 
his legal liability for such injury by or under a policy of insurance 
issued by an insurance company duly authorized to transact busi- 
ness in the commonwealth under chapter one hundred and 
seventy-five, to the amount or limit of at least five thousand dollars 
and that such company, at the time such judgment was rendered, 
remained liable thereunder; nor shall this section apply in the case 
of a judgment rendered in an action brought to recover damages for 
death or bodily injuries as well as damages for such injury to prop- 
erty, unless a separate finding or verdict for such property damages 
has been entered or returned in such action, in which case the 
amount of damages so awarded shall, for the purposes of this sec- 
tion, be deemed the amount of the judgment. The registrar shall 
not impose such suspension if he is satisfied that indemnity against 
such judgment will be furnished the judgment debtor by a city or 
town under section one hundred A of chapter forty-one. 

"If a judgment debtor satisfies the clerk of the court in which the 
judgment was obtained that said judgment debtor is unable to lo- 

P.D. 12 57 

cate the judgment creditor or his legal representative, he may de- 
posit with such clerk the full amount of the execution with interest 
and said clerk shall give to him a receipt therefor reciting such 
facts. Upon presentation to the registrar, such receipt in full shall 
be evidence of satisfaction, release, or discharge of the judgment 

Section 22A is silent whether a discharge in bankruptcy is to be consi- 
dered "satisfaction" of a judgment rendered against a licensee. How- 
ever, the recent decision of the Supreme Court of the United States in 
Perez v. Campbell (1971), 402 U.S. 637, settles the question. There, an 
Arizona statute had an express provision that a discharge in bankruptcy 
did not relieve a judgment debtor of the effect of the Arizona Motor 
Vehicle Safety Responsibility Act. The Supreme Court held that the 
Arizona statute conflicted with the Federal Bankruptcy Act and was 
therefore invalid on Supremacy Clause grounds. 

Accordingly, in order to render section 22A constitutional, satisfac- 
tion of a judgment must be deemed to include a discharge in bankruptcy. 
If such a discharge has been obtained from a Federal court of competent 
jurisdiction, the license suspension must be terminated. 

Very truly yours, 

Attorney General 

Number 7 September 23, 1971 

Mrs. Irene E. Bode, Chairman 
Board of Registration of Hairdressers 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Mr. Anthony J. Bellio, Secretary 
Board of Registration of Barbers 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mrs. Bode and Mr. Bellio: 

You have requested my opinion with respect to the effect of the re- 
cent enactment of Chapter 418 of the Acts of 1971 (entitled "An Act to 
Prohibit Discrimination on the Basis of Sex in Public Accommoda- 
tions") upon those statutes whose subject matter is the registration of 
barbers (Mass. G. L. c. 1 12, §§ 87F through 87S) and the registration of 
hairdressers (Mass. G. L. c. 112, §§ 87T through 87KK). Although I am 
required to render formal advice only to "departments, officers and offi- 
cials" of the Commonwealth under the provisions of Mass. G. L. c. 12, 
§3,1 will respond to your joint request because of the public signifi- 
cance and immediacy of the question you raise. 

58 P.D. 12 

Section One of c. 418 of the Acts of 1971, which amends Mass. G. L. 
c. 272, § 92 A, provides in pertinent part: 

"A place of public accommodation . . . shall be defined as 
and shall be deemed to include any place, whether licensed or 
unlicensed, which is open to and accepts or solicits the pa- 
tronage of the general public and . . . whether or not it be . . . 
(5) a . . . barber shop, beauty parlor ..." 

Section Two of c. 418 of the Acts of 1971, which amends Mass. G. L. 
c. 272, § 98, further provides as follows: 

"Whoever makes any distinction, discrimination or restric- 
tion on account of . . . sex . . . relative to the admission of 
any person to, or his treatment in, any place of public ac- 
commodation ... as defined in section ninety-two A . . . 
shall be punished by a fine of not more than three hundred 
dollars or by imprisonment for not more than one year, or 
both, and shall forfeit to any person aggrieved thereby not 
less than one hundred nor more than five hundred dollars 

Under Mass. G. L. c. 112, § 87F, a "Barber" is defined as "any per- 
son who . . . shaves or trims the beard, cuts the hair . . . [etc.] of any 
male person ..." (Emphasis supplied.) Under Mass. G. L. c. 112, § 
87T, "Hairdressing" is defined in part as "arranging, dressing, curling, 
waving, cleansing, cutting, singeing, bleaching, coloring, or similarly 
treating the hair of any female ..." (Emphasis supplied.) 

Thus, the issue you raise is the extent, if any, to which the Legislature 
intended that c. 481 of the Acts of 1971 affect the statutory provisions 
concerning barbers and hairdressers. " 'The words of a statute are the 
main source for the ascertainment of a legislative purpose . . . ' " Tilton 
v. Haverhill, 311 Mass. 572, 577, and cases cited. Words in common use 
must be construed in their usual and ordinary sense and given the mean- 
ing intended when they are used by ordinary men. Save-Mor Supermar- 
kets, Inc. v. Shelly Detective Service, Inc., 1971 Mass. Adv. Sh. 537, 

In my opinion, a barber who would refuse a female the services he is 
authorized by statute to offer to "any male person" or a hairdresser who 
would refuse a male the services authorized by statute to be offered to 
"any female" would be engaged in making a "distinction, discrimination 
or restriction on account of . . . sex . . . relative to ... [a person's] 
treatment in, any place of public accommodation" within the usual 
meaning of the words employed in c. 418. 

While it might be contended that a licensed barber or hairdresser re- 
fusing such services would not be engaging in any discrimination on ac- 
count of sex for any personal reasons but rather because of the require- 
ments imposed by law under the above-cited definitional provisions of c. 
112, I find such an argument unpersuasive. First of all, the statute is si- 
lent as to the reason for discrimination on account of sex and does not 

P.D. 12 59 

distinguish between discrimination based on personal grounds and dis- 
crimination purportedly required under prior existing law. Accordingly, 
discrimination on account of sex for whatever reason is prohibited, and 
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. 
Secondly, the "statute is to be so construed as to 'be given an effect in 
harmony with common sense and sound reason.' Duggan v. Bay State 
St. Rv., 230 Mass. 370, 374." Sullivan v. Boston Retirement Board, 
1971 Mass. Adv. Sh. 545, 546. It would not be consistent with common 
sense or sound reason to declare that a statute clearly prohibiting dis- 
crimination on account of sex in a place of public accommodation allows 
such discrimination in a barber shop or beauty parlor. Such an interpre- 
tation would completely negate the intent of these specific statutory 
provisions, a mode of interpretation which should be avoided. See 
Board of Assessors of Newton v. Pickwick Ltd., Inc., 351 Mass. 621, 
625. Lastly, such an interpretation would be contrary to the rule of 
statutory construction that, if possible, the enactment of nugatory provi- 
sions will not be attributed to the Legislature. Goldsmith v. Reliance 
Ins. Co., 353 Mass. 99, 102. Stated in other words, I cannot assume that 
words in a statute have no force and effect. See Milton v. Metropolitan 
District Commission, 342 Mass. 222, 225. 

Accordingly, it is my opinion that c. 418 of the acts of 1971 has im- 
pliedly repealed those provisions in c. 1 12, §§ 87F and 87T which limit a 
barber from offering the same services to females which he performs for 
males and which limit a hairdresser from offering to males the same ser- 
vices which are afforded females. Specifically, c. 418 has the effect of 
eliminating the world "male" from Section 87F and the word "female" 
from Section 87T, and inserting in place of the word "female" the word 
"person." I further note that barbers and hairdressers respectively may 
still provide only those services which are authorized by statute. 

Although the principle of implied repeal is admittedly not regarded 
with favor and is applied with caution (Gregoire, petitioner, 355 Mass. 
399, 400), nevertheless it has its place in the construction of legislative 
enactments. Doherty v. Commissioner of Administration, 349 Mass. 
687, 690. "The test of the applicability of the principle of implied repeal 
is whether the prior statute is so repugnant to and inconsistent with the 
later enactment covering the same subject matter that both cannot 
stand." Ibid. Such may exist when the Legislature enacts a law covering 
a particular field but leaves conflicting prior prescriptions unrepealed. 
Ibid. It is clear in this instance that the statutory definitions of "barber" 
and "hairdressing" referred to above are repugnant to and inconsistent 
with c. 418. Accordingly, since the legislative intent in the later statute 
must prevail, the earlier statute must give way. Ibid. 

Since the intent of c. 418 is fully effected by the above interpretation, 
I am of the further opinion that no other changes are effected by the sta- 

Very truly yours, 

Attorney General 

60 P.D. 12 

Number 8 October 6, 1971 

Honorable John J. Fitzpatrick 
Commissioner of Correction 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Fitzpatrick: 

You have requested my opinion whether prisoners condemned to 
death must be kept separate and apart from other sentenced prisoners or 
whether they may be integrated into the general population of a correc- 
tional institution. You state that it has been the view of the Department 
of Correction that G. L. c. 279, § 44 requires the separation of con- 
demned prisoners from other prisoners, but express doubt whether this 
interpretation is correct. 

It is my opinion that under § 44, the superintendent of the state prison 
has discretionary authority to remove a condemned prisoner from the 
special cell in which he is held and return him to a cell among the gen- 
eral prison population if the execution of that prisoner's sentence has 
been respited by the governor or otherwise delayed by process of law. 

General Laws, c. 279, § 44 1 provides that a sheriff who has custody of 
a convict sentenced to death shall within seven days of the imposition of 
the sentence (in the case of a male convict) 2 deliver the convict to the 
superintendent of the state prison. At the time of delivery to the state 
prison, in the case of a male convict, the execution of sentence has been 
stayed by operation of G. L. c. 279, § 4. 3 The superintendent is directed 

1 Section 44. as amended through St. 1957. c. 777, § 41, provides: 

"The sheriff of the county in a jail whereof a convict sentenced to the punishment of death is confined, or 
a deputy designated by the sheriff, within seven days after the imposing of such sentence in the case of a 
male convict or within ten days after receipt by the sheriff of the warrant for the execution of such a sen- 
tence in the case of a female convict, shall, at a time chosen by the sheriff, convey such male or female 
convict, as secretly as may be, to the state prison and deliver him or her, with the warrant in either case, to 
the superintendent thereof or to the officer performing his duties. Within ten days after service on said 
superintendent or officer performing his duties of a certificate of the clerk of the court of the revocation 
under section four of the stay of execution of such a sentence in the case of a male convict, and upon her 
delivery to the state prison as aforesaid in the case of a female convict, such convict shall forthwith be 
placed in a cell provided for the purpose and shall thereafter be kept therein until the sentence of death is 
executed upon him or her. and no person shall be allowed access to him or her without an order of the 
court, except the officers and employees of the prison, his or her counsel, and such physicians, priest or 
minister of religion as the superintendent may approve, and the members of his or her family who are iden- 
tified to the satisfaction of the superintendent. If the execution of the sentence of death is respited by the 
governor, or is otherwise delayed by process of law, the convict may. in the discretion of the superinten- 
dent, be confined in a cell provided for the purpose. The superior court may make any order relative to the 
custody of a person confined in the state prison under this section in case he or she is granted a new trial." 

- In the case of a female convict, the sheriff is to retain custody of the prisoner until he has received the warrant for 
execution of sentence. This would not take place until after the revocation of the automatic stay of execution under G. 
I., c. 279. § 4. Sec note 3 mini. 

Section 4 provides, in pertinent part: 

It sentence is imposed upon conviction of a crime punishable by death, the justice imposing the scn- 
tence shall at the same time stay the execution of the sentence, such stay to be effective until revoked by 
the superior court, which is hereby granted full powers of revocation in the premises. I he clerk of such 
court shall, forthwith upon the revocation by the court of am such stay of execution of sentence upon a 
male convict, certify that said stay has been revoked and cause said certificate to be served upon the 
superintendent of the state prison, or the officei performing his duties, by any officer qualified to serve 
Criminal process; and the officei serving the same shall forthwith make due return of service to the clerk." 

P.D. 12 61 

by § 44 to place the convict "in a cell provided for the purpose," 4 within 
ten days after service on the superintendent of a certificate stating that 
the stay of execution mandated by c. 279, § 4 has been revoked. Under 
c. 279, § 45, the superintendent is to execute the sentence of death not 
earlier than twenty days nor later than thirty days after receipt of the 
certificate of revocation. Nothing in § 44 requires the superintendent to 
place the condemned convict in a special cell until the superintendent 
has received the certificate or revocation. In view of the requirements of 
§ 45 as to the time for execution of sentence, it is clearly anticipated that 
the condemned prisoner will be isolated in a special cell only for a mat- 
ter of weeks before the death sentence is executed. 5 

Prior to 1955, there was no provision in § 44 which authorized the 
superintendent to return a condemned convict to a regular cell once the 
stay of execution had been revoked. Section 44, as amended by St. 1935, 
c. 437, § 5, provided that "[i]f the execution of the sentence of death is 
respited by the governor, or is otherwise delayed by process of law, the 
convict may, in the discretion of the warden [now superintendent], be 
confined in a cell used for solitary confinement." The section as then 
written gave the warden authority to take unusual precautions with re- 
gard to a condemned prisoner whose appeals had been exhausted and 
whose stay of execution had been revoked, but did not give him author- 
ity to return that prisoner to the general prison population. 

It is my opinion that the 1955 amendments to § 44 granted the superin- 
tendent authority to return to the general prison population a prisoner 
the execution of whose sentence has been respited by the governor. By 
St. 1955, c. 770, § 108, the above-quoted provision of § 44 was amended 
to read: 

"If the execution of the sentence of death is respited by the 
governor, or is otherwise delayed by process of law, the con- 
vict may, in the discretion of the principal officer 
[superintendent] be confined in a cell provided for the pur- 
pose." (Emphasis supplied.) 

Although the language is not entirely clear, it appears that the sub- 
stitution of the phrase "provided for the purpose" for "used for solitary 
confinement" was intended to enlarge the discretionary authority 
of the superintendent so as to allow him to decide whether in the cir- 
cumstances it is more appropriate to keep a particular convict in his spe- 

4 See St. 1935, c. 50, § 1, which directed the warden of the state prison to "designate sections or enclosures in the state 
prison which shall be used as places for the safe keeping of persons convicted of murder in the first degree," which in 
1935 was automatically punishable by death. Such an enclosure is commonly termed "death row." Access to a convict in 
a cell provided for the purpose is limited by c. 279, § 44, to his counsel, physician and family. 

5 Prior to the 1935 amendment, G. L. (Ter. Ed.) c. 279, § 43 directed the court which pronounced the sentence of death 
simultaneously to "appoint a week within which the sentence shall be executed." Under § 44 as it then read, the sheriff 
was to retain custody of the prisoner until "within ten days of the first day of the week ready for the execution of the 
sentence." He was then to deliver the prisoner to the state prison, where he was immediately to be placed in "a cell 
provided for the purpose." 

62 P.D. 12 

cial isolated cell or to return him to the general prison population. Be- 
fore the 1955 amendments, § 44 gave the superintendent only the choice 
either to leave a convict whose execution had been respited by the gov- 
ernor in "cell provided for the purpose" or to place him in "a cell used 
for solitary confinement." Under § 44 as it now reads, the superinten- 
dent has additional discretion to decide whether the convict need be 
kept in the "cell provided for the purpose." 

The legislative history of the 1955 amendments supports this interpre- 
tation. The changes in § 44 were part of a general reform of the laws 
pertaining to penal institutions in the Commonwealth, St. 1955, c. 770, 
which reorganized the administration of the penal system and enacted a 
number of liberalizing measures pertaining to the establishment of train- 
ing schools, the extension of periods of time allowed outside the prison 
to female prisoners for domestic work, the reduction of sentences for 
good behavior, inclusion of time awaiting trial as part of a sentence, and 
so forth. The statute was based on a lengthy and exhaustive study of the 
penal system by a commission appointed by the governor. See Report 
and Recommendations of the Governor's Committee to Study the 
Massachusetts Correctional System, Senate Doc. 750 of 1955. Included 
among those recommendations was that G. L. c. 279, § 44, be amended 
to provide that if a condemned convict's execution is respited by the 
governor, the convict "may, in the discretion of the commissioner, be 
confined in another cell." Id. § 300. While the language of the provision 
which was subsequently enacted differs from that recommended in the 
report of the commission, it was in my opinion intended to accomplish 
the same result, i.e., to give the superintendent discretion to remove a 
condemned prisoner from his special cell while execution of his sentence 
is under respite from the governor or otherwise delayed by process of 

Very truly yours. 


Attorney General 

Number 9 November 4, 1971 

Honorable Kevin B. Harrington 

President, Massachusetts Senate 

Senate Lobby 

State House 

Boston, Massachusetts 02133 

Dear Senator Harrington: 

I am in receipt of an order of the Senate which requests my opinion on 
the following question: 

"Would H. 5982, entitled 'An Act relative to the territorial wa- 
ters of the Commonwealth and extending the authority of the Di- 
rector of the Division of Marine Fisheries' if passed, violate any 

P.D. 12 63 

provision of the Constitution or laws of the Commonwealth or of 

the United States?" 
Subject to the discussion and caveats contained herein, I answer the 
question in the negative. 

H. 5982 would amend Chapter 130 of the General Laws by adding a 
new paragraph 10 to section 17 thereof. Section 17 deals with the powers 
and duties of the Director of the Division of Marine Fisheries. As 
amended, section 17 would provide, in pertinent part: 

"(10) Notwithstanding any contrary provision of law, with the 
exception of chapter 130 of the General Laws of the Common- 
wealth of Massachusetts, adopt, amend, or repeal all rules and 
regulations, with the approval of the Governor, necessary for the 
maintenance, preservation and protection of all marine fisheries re- 
sources between the mean high water mark of the commonwealth 
and a straight line extension of the lateral boundaries of the com- 
monwealth drawn seaward to a distance of 200 miles or to a point 
where the water depth reaches 100 fathom [sic], whichever is the 
greatest. Any person, firm or corporation convicted of violating 
any rule or regulation authorized under the provisions of this 
paragraph shall be punished by a fine not to exceed ten thousand 
dollars ($10,000.). Violations may be prosecuted in any superior 
court within the Commonwealth of Massachusetts." 

H. 5982, therefore, provides the Director of the Division of Marine 
Fisheries with broad rule-making authority. He may "adopt, amend, or 
repeal all rules and regulations . . . necessary for the maintenance, pre- 
servation and protection of all marine fisheries resources ..." located 
in area between "mean high water" and a line approximately two 
hundred miles from shore. The bill does not require that the Director 
take any action, nor does it prescribe or specify what rules and regula- 
tions are to be adopted, amended or repealed. Complete discretion re- 
sides with the Director, subject to the approval of the Governor. 

In this posture, it is conjectural as to just what use the Director will 
make of his powers if the bill is enacted into law. It is possible that he 
will adopt rules which would have the effect of preserving and protecting 
the marine fisheries resources within the designated area even though 
such rules were enforced only within the territorial waters of the Com- 
monwealth. It is also possible that the Director will decide to limit his 
rule-making authority to adopting rules and regulations which affect or 
are to be enforced only against residents of the Commonwealth, even 
though such rules will be effective within the entire two hundred mile 
area. Such enforcement against residents of the Commonwealth could 
well, depending upon the exact facts of the situation, be constitutional. 
Skiriotes v. State of Florida, 313 U.S. 69. 72-79. 

In conclusion, then, it is my opinion that H. 5982 per se does not con- 
travene any provision of the Constitution or laws of the Commonwealth 

64 P.D. 12 

or of the United States. I intimate no opinion whatsoever whether the 
Commonwealth could establish jurisdiction over an area two hundred 
miles seaward and enforce rules or regulations of one of its agencies 
within that area as to persons not residents of the Commonwealth, since 
that question is not presented by the request for an opinion. Such an 
opinion could only be given on a precise state of facts which is not now 
before me. 

Very truly yours, 

Attorney General 

Number 10 November 15, 1971 

Mrs. Mary B. Newman, Secretary 
Executive Office of Manpower Affairs 
18 Tremont Street 
Boston, Massachusetts 02108 

Dear Secretary Newman: 

You have requested my opinion whether you may deposit funds which 
are received by the Commonwealth as a result of the Federal 
Emergency Employment Act (Pub. L. 92-54; 85 Stat. 146) in the Unity 
Bank and Trust Company. You have advised that during the Fiscal 
Year 1972 the Commonwealth, as program agent, will be receiving a 
total of $21,858,605, more than three quarters of which is designated for 
cities and towns. The remainder will be used to fund the payroll for the 
state employees covered by the Act. 

You further state that the Federal Department of Labor has urged 
state and municipal agencies which are the recipients of Federal funds to 
keep all or a portion of those funds in a minority bank. Finally, you ad- 
vise that Unity Bank is the only minority bank in New England. By 
minority bank, I presume you mean a bank serving the black commu- 
nity, owned and staffed principally by blacks. 

The answer to your question depends upon various constitutional and 
statutory provisions. Article 63 of the Articles of Amendment to the 
Constitution of the Commonwealth provides, in section 1: 

"All money received on account of the commonwealth 
from any source whatsoever shall be paid into the treasury 
thereof." (Emphasis supplied.) 

The Federal funds received by the Commonwealth as agent for the 
Emergency Employment program are clearly received "on account of 
the commonwealth" within the meaning of Article 63. The Act itself 
speaks of the states as recipients of the funds and refers to the amount 
apportioned to each state. Pub. L. 92-54, 85 Stat. 146, § 9(b). In another 
context, Federal funds received as reimbursements have been consid- 
ered to be funds received "on account of the commonwealth." Opinion 

P.D. 12 65 

of the Justices, 334 Mass. 716, 718. See, also, Opinion of the Justices, 
349 Mass. 804, 809. In the absence of any Federal statute mandating 
payment of the funds directly to your agency and not to the Treasury of 
the Commonwealth or any statutory exception which would characterize 
the funds as not being received "on account of the commonwealth," I 
conclude that the funds must be treated as are all other monies received 
by the commonwealth. 

That being the case, the monies are subject to the control and supervi- 
sion of the Treasurer and Receiver General. General Laws, Chapter 29, 
section 34 authorizes the Treasurer to deposit "public monies in his pos- 
session" in those banks which have been approved "at least once in 
every three months by the governor and council ..." Thus, subject to 
the restrictions of section 34, the Treasurer could deposit Emergency 
Employment Act funds in the Unity Bank and Trust Company. 

It is possible, however, that the statutory provisions relating to ad- 
vancements from the state treasury can be utilized in the instant situa- 
tion. General Laws, Chapter 29 contains the following three sections, all 
relating to the procedure for advancements: 

§ 23. "Any officer authorized to expend money in behalf of 
the commonwealth may have money advanced to him from 
the treasury for such purposes, in such sums and subject to 
such rules and regulations as the comptroller may deter- 

§ 24. "Such officers shall certify that the amount is needed 
for immediate use, and, as specifically as may be, the pur- 
poses for which the expenditure is required. The certificate 
shall bear the approval of the officer or department having the 
supervision of such expenditure and, when filed with the 
comptroller, his certificate and the warrant and payment shall 
follow as in case of claims against the commonwealth." 

§ 25. "Such officers shall, within thirty days after receipt of 
an advance, file with the comptroller a detailed statement of 
the amounts expended subsequent to the previous account- 
ing, approved by the officer or department authorized to 
supervise such expenditure, with vouchers therefor if they 
can be obtained. All advances so made shall be accounted for 
and vouchers therefor filed with the comptroller before the 
close of the fiscal year." 
As section 23 provides, advancements are subject to the rules and 
regulations of the Comptroller. I am advised that the Comptroller will 
permit advancements for authorized purposes subject to such rules, pro- 
vided the deposit is in a bank approved by the Treasurer and Receiver 
General from the list which, in turn, is approved by the Governor and 
Council. In 1960, the then Attorney General stated: 

"It is clear that the Treasurer may advance monies from 
deposits under his control to officers of the commonwealth by 

66 P.D. 12 

virtue of and subject to the provisions of G. L. c. 29, §§ 23, 
24 and 25. When such State officers deposit the money so ad- 
vanced the deposit is not subject to G. L. c. 29, § 34, but is 
instead subject to §§ 23, 24 and 25." 1961 Op. Atty. Gen'l 
(Sept. 22, 1960) 55, 56. 

Construing the statement in the opinion that "tfre deposit is not subject 
to G. L. c. 29, § 34" to mean that the deposit is not subject to the per- 
centage limitations for deposit of state funds set out in section 34, I con- 
cur in the statement quoted above. 

In answer to your question, then, it is my opinion that Emergency 
Employment Act funds may be deposited in the Unity Bank and Trust 
Company provided the procedures of G. L. c. 29, §§ 23, 24 and 25 are 

Very truly yours, 

Attorney General 

Number 11 November 19, 1971 

Honorable Robert Q. Crane 
Treasurer and Receiver General 
Chairman, State Board of Retirement 
73 Tremont Street 
Boston, Massachusetts 02108 

Dear Mr. Crane: 

You have requested an opinion on several questions relating to the 
credit for military service to be given to Aime J. Caron of Middleboro 
who has indicated that he intends to retire from his position as a correc- 
tion officer at the State Farm, Bridgewater. It appears that Mr. Caron 
took an examination on June 11, 1938 for correction officer for state and 
Fall River services, and an eligible list was established as a result of that 
examination on April 14, 1939. Mr. Caron's name was on that list, as he 
received a grade of 77.39 on the examination. Mr. Caron entered the 
military service of the United States in September of 1940, and, on Feb- 
ruary 7, 1941, he was advised that "your name will be withheld from 
future certifications from the correction officer's list until you notify this 
office [Division of Civil Service] that you are available for appoint- 

Notwithstanding the above-quoted letter, Mr. Caron was certified on 
June 10, 1941 to the Fall River Real Estate Department for appoint- 
ment, but he was, of course, unable to accept the appointment at that 
time. On September 6, 1944, he was notified as follows: 

"Your two-year period of eligibility for Correction Officer ex- 
pired on April 14, 1941 but the eligibility was continued until Au- 
gust 15, 1941 when a new list was established. 

P.D. 12 67 

"After you have received your honorable discharge, please ex- 
hibit it in this office together with a certificate from a registered 
physician that you are not physically disabled or incapacitated for 
performing the duties of a correction officer. Your name will then 
be restored to the eligible list." 
Subsequently, on November 8, 1944, Mr. Caron was advised that his 
"name was restored to the eligible list for State Correction Officer serv- 
ice for certification to the State Farm only." On April 25, 1945, his 
name was certified for appointment to the State Farm, and on May 6, 
1945, he was appointed a permanent Correction Officer at that institu- 

Your question arises because of the provisions inserted in G. L. c. 32, 
§ 5(1) by St. 1967, c. 889. Chapter 889 inserted a new paragraph (j) in 
sub-section 1 as follows: 

"(j) Any member who was appointed while serving in the 
armed forces between January first, nineteen hundred and 
forty and July first, nineteen hundred and fifty-five, or who, 
during such period, was certified for appointment, but en- 
tered the military service before such appointment and was 
subsequently appointed from the same list after his discharge 
or release from military service, shall have credited as credit- 
able service towards retirement the period beginning as of the 
date of his appointment or certification for appointment and 
ending as of the date of his discharge or release from military 
service; provided, however, that such creditable service shall 
not be construed to include service for more than four 

In view of the certification of Mr. Caron' s name to the Fall River 
Real Estate Department on June 10, 1941 and his subsequent appoint- 
ment to the State Farm, Bridgewater, you ask whether "an employee 
who is certified for appointment in the service of the city but who after 
discharge from military service accepts an appointment from the state is 
entitled to the credit provided in [paragraph j] ..." It is my opinion 
that the employee is entitled to the credit in this instance. 

It is clear that Mr. Caron' s certification to the Fall River Real Estate 
Department in 1941 and his subsequent appointment to the State Farm 
in 1945 both occurred as a result of his successfully passing the examina- 
tion taken on June 11, 1938. Although the statute refers to being "sub- 
sequently appointed from the same list" as the list from which he was 
originally appointed or certified, I construe that language as meaning the 
employee must be subsequently appointed as a result of the examination 
he originally took and which caused him to be appointed or certified for 
appointment in the first place. I do not think that the Legislature in- 
tended that one must be appointed from the same physical list as that 
from which he was originally appointed or certified. The intent was 
clearly to give credit for military service to those persons who, as a re- 
sult of having successfully passed civil service examinations, would 

68 P.D. 12 

have been appointed to civil service positions but for their service in the 
armed forces at the time of appointment. That intent is carried out by 
the conclusion which I have reached, which conclusion is given further 
support by the fact that the Legislature provided for a maximum credit 
of four years' military service, whereas most civil service lists have a 
maximum life of two years. See G. L. c. 31, § 12. 

Your second question is who is liable for the pension payment for the 
military service credit. I can find no provision which would make the 
City of Fall River liable for a portion of the cost of the pension, and I 
therefore conclude that the Commonwealth is liable for the entire pen- 
sion payable to Mr. Caron. 

Very truly yours, 


Attorney General 

Number 12 November 19, 1971 

Mrs. Nancy B. Beecher, Chairman 

Civil Service Commission 

State House 

Boston, Massachusetts 02133 

Dear Mrs. Beecher: 

You have requested my opinion on the following question: 

Where an applicant for a civil service position has pro- 
tested the contents of a civil service examination for that pos- 
ition to the Director of the Division of Civil Service, and the 
Director has denied that protest, does the Civil Service 
Commission have sufficient statutory authority to reverse the 
Director's decision that the examination is valid and that its 
results should stand? Specifically, does the Commission have 
the authority to determine whether the Director has met the 
requirements of section 10 of Chapter 31 of the General Laws 
which provides, in part, that "... they [the examinations] 
shall relate to matters which will fairly test the fitness of the 
applicants actually to perform the duties of the positions for 
which they apply." 

It is, of course, fundamental that statutes are to be construed accord- 
ing to the intention of the Legislature: "[SJtatutes are to be construed 
according to the intention of the framers ..." Howard v. Harris, 90 
Mass. 297, 298. With respect to the civil service law, the fundamental 
rule of construction is as follows: "The civil service law as a whole . . . 
'ought, if possible, to be so construed as to make it an effectual piece of 
legislation in harmony with common sense and sound reason.' ' Younie 
v. Doyle, 306 Mass. 567, 571-572. 

General Laws, c. 13, § 2 creates the Division of Civil Service within 
the Department of Civil Service and Registration and provides that the 

P.D. 12 69 

Division of Civil Service " . . . shall be under the supervision and con- 
trol of a director of civil service, who shall be the executive and adminis- 
trative head of the division ..." This section emphasizes the "adminis- 
trative" nature of the Director's position by adding, "He shall be a per- 
son familiar with the principles and experienced in the methods and 
practices of personnel administration." 

General Laws, c. 31, § 2 details some of the duties and powers of the 
Civil Service Commission, among which is the following: "Hear and 
decide all appeals from any decision or action of, or failure to act by, the 
director ..." (Emphasis supplied.) The choice and use of the modifiers 
"all" and "any" suggests that the Legislature intended this appellate au- 
thority to be both broad and eclectic in nature, and to be limited, if at 
all, only by reservations or qualifications expressly spelled out within 
the statute itself. Section 2 clearly provides for appellate review by the 
Commission of a Director's decision regarding examination results: "An 
appeal from a decision determining the results of an examination shall be 
in writing in the form approved by the commission, and shall contain a 
brief statement of the facts upon which such appeal is based ..." 
However, on this particular grant of appellate review to the Commission 
by the Legislature, there is one explicit qualification: "[PJrovided, that 
no decision of the director relating to an examination mark shall be re- 
versed and no such mark changed unless the commission finds that it 
was through error, fraud, mistake or in bad faith ..." (Emphasis sup- 
plied.) It is important to note that this single limitation on the 
Commission's otherwise full and unfettered appellate authority over the 
Director's decisions refers expressly and exclusively to examination 
marks alone (as opposed to a broader, more encompassing term such as 
examination "results" or examination "content" or "format"). That the 
Legislature so intended this one limitation to apply specifically and ex- 
clusively to the review of "marks" (and not to the review of examina- 
tion "results") is plainly evidenced by the fact that the 1945 amendment 
to this section inserted the restrictive phrase "relating to an examination 
mark." St. 1945, c. 725, § 1. Prior to 1945, this proviso which required 
the Commission to find that the Director's decision was "... through 
error, fraud, mistake or in bad faith ..." before the Commission could 
reverse the Director's decision applied to any and all appeals concerning 
the results of an examination. Thus, I conclude that where a decision of 
the Director regarding the results of an examination is being reviewed 
by the Commission, the Commission does have statutory authority to 
reverse, upon appellate review, the Director's decision that an 
examination's results should stand. 

I now reach the specific example referred to in your question. General 
Laws, c. 31, § 10 speaks directly to the scope of examinations offered by 
the Division of Civil Service. It reads, in part, as follows: "Examina- 
tions shall be conducted under the direction of the director, who shall 
determine the form, method and subject matter thereof; provided, that 
they [the examinations] [shall relate to matters which will fairly test the 

70 P.D. 12 

fitness of the applicants actually to perform the duties of the positions 
for which they apply." (Emphasis supplied.) It is clear from the language 
in this section that the authority granted to the Director is not unqual- 
ified or final. On the contrary, the qualifying proviso is in the nature of a 
caveat to the Director, reminding him that his decisions concerning the 
scope of examinations are subject to a standard of "fairness" and, to the 
degree that those decisions do not conform to that standard of fairness, 
are reviewable by, and subject to reversal by, the Commission. Such a 
legislative intent is both inferable from and consistent with the appellate 
authority broadly and absolutely granted to the commission in § 2 of c. 
31 cited supra.] 

This conclusion is supported by an analysis of two decisions of the 
Supreme Judicial Court which dealt with the Commission's powers over 
the results of examinations. In Moore v. Civil Service Commission, 333 
Mass. 430, the petitioner, along with seven others, took a competitive 
civil service promotional examination. He was notified that his grade 
was the highest received by anyone taking the examination. After the 
grades had been recorded, some of the other competitors appealed to the 
Director of Civil Service who, after hearing, denied their appeal and re- 
fused to set aside the results of the examination. From this decision, the 
aggrieved competitors appealed to the Commission which voted to can- 
cel the examination and to hold another. The Court stated: 

"One of the subjects with which the special commissions 
and the Legislature were especially concerned was that relat- 
ing to examinations. It is apparent from the recommendations 
of the commissions and the statutes set forth above that the 
making up and grading of examinations were to be primarily 
administrative functions to be performed by the director and 
that the appellate jurisdiction of the commission relating to 
examination marks was to be more restricted than it was in 
other matters." 333 Mass. at 434. 
However, the Court drew a distinction between aggrieved applicants 
who were challenging the examination in its entirety and those appli- 
cants who were exercising their rights under G. L. c. 31, § 12A for a 
review by the Commission of the markings of the examination. The 
Court noted that, 

"If the former [challenging the examination in its entirety], 
we cannot say that the commission could not, in appropriate 
cases, set aside an examination. In such cases, however, the 
commission must set forth in its records the specific reasons 
for its action. If the appeal here was of that sort we cannot 
say on the basis of the petition that the commission exceeded 
its authority. The commission may have had good grounds 
for setting aside the examination." 333 Mass. at 436. 

As an example of the type of case which the Court felt would justify 
the Commission's decision to set aside an examination where it was 
being challenged in its entirety, it said: 

P.D. 12 71 

"If, for example, the commission was satisfied that prior to 
an examination the examination paper had been stolen or that 
its contents had been revealed by a disloyal employee in the 
division, it would plainly be justified in setting the examina- 
tion aside." 333 Mass. at 436, fn. 2. 
The Court did remind the Commission, though, that: 

"This limitation on the powers of the commission touching 
examination marks could not be evaded by the simple device 
of setting the examination aside. Where that course is 
adopted by the commission in cases of appeals from decisions 
relating to examination marks there must be a finding of 
error, fraud, mistake or bad faith." 333 Mass. at 436-437. 

Thus, a key question seems to be whether or not a particular examina- 
tion is being challenged in its entirety or only for the limited purpose of 
reviewing some or all of the markings of applicants taking that examina- 
tion. If the latter, then there must first be a finding by the Commission 
that such markings were arrived at by the Director, "... through error, 
fraud, mistake or in bad faith ..." and absent such a finding, the 
Commission may not reverse any examination mark assigned by the Di- 
rector. If, however, the former is the case, i.e., that a particular exam- 
ination is being challenged in its entirety, then the Commission can, in 
appropriate cases, set aside such an examination. 

However, an appeal as to markings may, in an appropriate case, be 
treated as a challenge to the examination in its entirety. In DiRado v. 
Civil Service Commission, 352 Mass. 130, the petitioner and seventy- 
one other applicants took a civil service examination for the position of 
artist in the Department of Public Works. The examination was held at 
different places and only nine applicants, including DiRado, passed the 
examination. Some applicants had the advantage of using certain 
mechanical drawing aids which they had brought to the examination, 
whereas other applicants had not brought such aids with them because 
the notice of the examination gave no indication that their use would be 
permitted. There was testimony to the effect that the use of these 
mechanical drawing aids resulted in a time advantage for those appli- 
cants who used them. Four applicants, including petitioner, requested 
the Director to review their markings on some of the particular ques- 
tions in the examination. Thereafter, three of the four applicants, includ- 
ing DiRado appealed from the Director's decision to the Commission 
under § 12 A and the Commission voted to cancel the examination and to 
request the Director to hold a new examination for the position. 
Petitioner sought to quash the decision of the Commission to cancel that 
examination that he had passed, and he contended that the subject of his 
appeal to the Commission was limited to the markings (as opposed to a 
review of the examination in its entirety). The Court, in its response, 
construed the appellate authority of the Commission rather broadly. It 
stated, "We conclude, therefore, that although the appeals, in form, 
may have requested that the markings on designated examination ques- 

72 P.D. 12 

tions be reviewed, their purpose, in fact and in substance, was to have 
the Commission review the manner in which the examination had been 
conducted." 352 Mass. at 133. The Court continued: 

"The Commission was therefore correct in deciding that 
the evidence showed that the use of drawing aids was a factor 
in the results of the examination, that the applicants at large 
had not been given an equal opportunity to use them, and that 
a new examination with uniform standards was the feasible 
way to provide an equal opportunity. The decision in no way 
usurped the powers given by statute to the Director. Rather, 
it was a quasi-judicial determination made by the commission 
acting in a quasi-judicial capacity." 352 Mass. at 134. (Em- 
phasis supplied.) 

In conclusion, it is my opinion that the Commission has statutory au- 
thority to reverse a Director's decision that an examination is valid and 
that its results should stand where the Commission finds that the exam- 
ination, as offered, did not fairly test the fitness of the applicants actu- 
ally to perform the duties of the positions for which they applied. 

Very truly yours, 


Attorney General 

Number 13 December 9, 1971 

Honorable John F. Kehoe 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Kehoe: 

Your predecessor requested my opinion as to the jurisdiction of the 
Department of Public Safety over the construction of a "private gas util- 
ity" of an above-ground tank of more than 10,000 gallons capacity for 
the storage of liquified nature gas (LNG). According to additional in- 
formation which has been provided, the "private gas utility" will dis- 
tribute and sell LNG both to public utility companies and to the public 
by means of pipelines and trucking facilities. The following question is 

"Does a private gas utility, intending to construct a facility 
for storing and piping gas in liquified form, come under the 
purview of Section 37 of Chapter 148 of the General Laws, it 
being understood that the above-ground tanks to be con- 
structed will contain more than 10,000 gallons and be used for 
the storage of gas in its fluid or liquid form?" 
I conclude that the Department of Public Safety does not have juris- 
diction over the private gas utility, and I therefore answer the question 
in the negative for the reasons hereinafter stated. 

P.D. 12 73 

General Laws, c. 148, § 37 states in pertinent part: 

"No person shall construct, maintain or use any tank or 
container of more than ten thousand gallons' capacity, for the 
storage of any fluid other than water, unless the same is lo- 
cated underground, without securing a permit therefor from 
the commissioner [of Public Safety]." 
In Op. Atty. Gen., May 27, 1968, at 195, my predecessor ruled that 
the Department of Public Utilities exercised exclusive jurisdiction over 
the construction by the Boston Gas Company of an above-ground tank 
of more than 10,000 gallons capacity for the storage of LNG. It was de- 
termined that the Legislature, by the enactment of G. L. c. 164, § 105A, 
intended to vest in the Department of Public Utilities exclusive jurisdic- 
tion, at the State level, over gas companies and their operations. Id. at 
197. Massachusetts General Law, c. 164, § 105A states in pertinent part: 

"Authority to regulate and control the storage, transporta- 
tion and distribution of gas and the pressure under which 
these operations may respectively be carried on is hereby 
vested in the department [of Public Utilities]." 

Since I concur in the conclusion reached in the former opinion for the 
reasons stated therein, the only question for resolution is whether the 
opinion is altered by the fact that construction of an LNG tank is con- 
templated by a "private gas utility," as described above. 

The grant of jurisdiction to the Department of Public Utilities under 
G. L. c. 164, § 105 A quoted above is unrestricted and does not differen- 
tiate between a "private gas utility" and a "public gas utility," however 
defined, with respect to the storage of gas. Accordingly, the portion of 
the statute quoted above must control the situation you raise unless 
other terms of the statute or the remaining statutory scheme of Chapter 
164 can be viewed as imposing a limitation upon the sweep of Section 

The latter part of Section 105A does refer to a "gas company," which 
is defined under G. L. c. 164, § 1 as: 

"a corporation organized under the laws of the common- 
wealth for the purpose of making and selling, or distributing 
and selling, gas within the commonwealth, even though sub- 
sequently authorized to make or sell electricity." 

Under the same section, however, this definition applies "unless the 
context otherwise requires . . . ' To the extent that the definition of 
"gas company" as formulated imposes any limitation upon the jurisdic- 
tion of the Department of Public Utilities over the storage of gas by a 
"private gas utility," I conclude that the context of Section 105 A re- 
quires that said limitation not apply, for the following reasons. 

General Laws c. 164, § 105 A should be interpreted so as to be ren- 
dered an effectual piece of legislation in accordance with common sense 
and sound reason. Atlas Distributing Co. v. Alcoholic Beverages Con- 

74 P.D. 12 

trol Commission, 354 Mass. 408, 414, and cases cited. The statute 
should also be construed so as to effectuate its salutary and important 
purpose {Foley v. Lawrence, 336 Mass. 60, 65), namely the safeguarding 
of the public from the risks inherent' in the storage of gas. Op. Atty. 
Gen., May 27, 1968, at 197. Compare Repucci v. Exchange Realty Co., 
321 Mass. 571, 575 (statute for the protection of human life to be broadly 
construed). Neither the vital purpose nor the effectiveness of the statute 
would be advanced by attributing to the statute an overly narrow con- 
struction. Moreover, since the term "fluid" in G. L. c. 148, § 37 does 
not include LNG within its meaning (Op. Atty. Gen., May 27, 1968, at 
197), to rule that G. L. c. 164, § 105A does not govern the factual situa- 
tion you raise might well result in the construction of gas storage tanks 
without the regulation and supervision of any public agency. An inten- 
tion to accomplish such an absurd result cannot be imputed to the Legis- 
lature. Johnson v. Commissioner of Public Safety, 355 Mass. 94, 99. On 
the other hand, to rule, as I do, that G. L. c. 164, § 105A governs all gas 
companies falling under its broad terms, irrespective of whether such 
companies are labelled "public" or "private," does not more than effec- 
tuate a "control which strongly tends to ensure protection of the public 
interest and which is within the statutory language." Boston Edison 
Company v. Sudbury, 1969 Mass. Adv. Sh. 1289, 1299. 

Accordingly, I conclude that the gas company you describe does not 
come within the purview of G. L. c. 148, § 37 but is subject to the provi- 
sions of G. L. c. 164, § 105A. 

Very truly yours, 


Attorney General 

Number 14 January 5, 1972 

Honorable Joseph J. Higgins 
Acting Commissioner of Correction 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Higgins: 

You have requested my opinion whether prisoners confined to the 
various correctional institutions of the Commonwealth may be transfer- 
red to the "penal facility" established at the Massachusetts Correctional 
Institution, Bridgewater, for the purposes of treatment as drug depen- 
dent persons. For the reasons hereinafter stated, I answer your question 
in the negative. 

On June 8, 1971, I rendered an opinion to the Commissioner of Men- 
tal Health with respect to commitments to MCI, Bridgewater under the 
provisions of Chapter 123 of the General Laws. A copy of that opinion 
is enclosed. I refer you to that opinion for a general discussion of the 

P.D. 12 75 

statutory provisions involved, and I incorporate herein so much of that 
opinion as is pertinent to the resolution of your question. As I noted in 
that opinion, the recent amendment to G. L. c. 125, § 19 made by St. 
1970, c. 888, § 6 restricts commitments to Bridgewater to males con- 
victed of drunkenness and persons committed pursuant to the provisions 
of Chapter 123. 

You have advised me that you contemplate transferring prisoners who 
have not taken advantage of the commitment and treatment provisions 
of Chapter 123. That being the case, the remaining question for resolu- 
tion, in view of my prior opinion, is whether the Commissioner's powers 
relating to transfer of prisoners found in G. L. c. 127, § 97 supersede the 
restrictions found in G. L. c. 125, § 19 and the procedures for commit- 
ment set out in Chapter 123. It is my opinion that they do not. 
General Laws, Chapter 127, section 97 provides: 

"The commissioner may transfer any sentenced prisoner 
from one correctional institution of the commonwealth to 
another, and with the approval of the sheriff of the county 
from any such institution except a prisoner serving a life sen- 
tence to any jail or house of correction, or a sentenced pris- 
oner from any jail or house of correction to any such institu- 
tion except the state prison, or from any jail or house of cor- 
rection to any other jail or house of correction. Prisoners so 
removed shall be subject to the terms of their original sen- 
tences and to the provisions of law governing parole from the 
correctional institutions of the commonwealth." 

Prior to 1958, the section restricted the transfer of prisoners sentenced 
to the state prison to the correctional institutions at Walpole, Norfolk 
and Concord. By St. 1958, c. 634, the section was amended to provide, 
as the title of the chapter stated, that such prisoners could also be trans- 
ferred to MCI, Bridgewater. The first sentence of section 97 was further 
revised, to read as it presently does, by St. 1968, c. 627. 

In 1967, the then Commissioner of Correction requested an opinion of 
my predecessor whether he might transfer prisoners from one correc- 
tional institution to the "state hospital" section of MCI, Bridgewater. 
The answer was in the negative because of the conclusion "that the 
Legislature intended the Superior Court warrant procedure to control 
the transfer of prisoners to the Hospital . . ." 1968 Op. Atty. Gen'l 47, 

In the instant situation, similar considerations govern. The Legislature 
has provided the machinery for commitments to the drug treatment facil- 
ity at MCI, Bridgewater in G. L. c. 123, § 48. Treatment is on a consen- 
sual basis, and, in the amendment made to G. L. c. 125, § 19, the Legis- 
lature has also provided that no prisoner may be committed to MCI, 
Bridgewater except males convicted of drunkenness and persons com- 
mitted pursuant to the provisions of Chapter 123. In my opinion, the 
Legislature has evidenced an intent that treatment at Bridgewater will be 

76 P.D. 12 

confined to those persons who voluntarily request commitment and 
treatment under the provisions of section 48. That intent cannot be cir- 
cumvented by utilizing the transfer powers found in G. L. c. 127, § 97. 
In conclusion, then, it is my opinion that prisoners may not be trans- 
ferred to the drug treatment facility at MCI, Bridge water from other 
correctional institutions unless they have invoked the provisions of G. 
L. c. 123, § 48. 

Very truly yours, 


Attorney General 

Number 15 January 10, 1972 

Honorable Freyda P. Koplow 
Commissioner of Banks 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Koplow: 

You have requested my opinion on the following question: 

"May the Commonwealth make payment, for services ren- 
dered, to an employee, approximately fifty-one years of age, 
who retired after more than twenty years service with the Di- 
vision of Banks and Loan Agencies, and received payments 
thereafter, pursuant to his rights as a member of the State 
Employees' Retirement System, and who, after re-entering 
the service of said Division, filed with the Board of Retire- 
ment, pursuant to section 90B of Chapter 32 of the General 
Laws, a waiver and renunciation of all pension or retirement 
allowance to become payable to him, effective for the period 
of his employment with said Division?" 
For the reasons stated hereinafter, I answer your question in the af- 

General Laws, Chapter 32, section 91 generally prohibits retired state 
employees from receiving, at one and the same time, both a retirement 
allowance from the Commonwealth and compensation for rendering 
services to the Commonwealth. The very first sentence of this section 
provides that "[n]o person while receiving a pension or retirement al- 
lowance from the commonwealth, . . . shall, after the date of his retire- 
ment be paid for any service rendered to the commonwealth . . . '" (Em- 
phasis supplied.) The language emphasized in the above quotation is 
syntactically a restrictive phrase, i.e., it is essential to the scope and im- 
port of the prohibition delineated in section 91. That prohibition was in- 
tended to apply only to those retired state employees who were being 
paid for rendering services to the Commonwealth while they were actu- 
ally receiving a pension or retirement allowance from the Common- 

P.D. 12 77 

wealth. Actual receipt of a retirement allowance contemporaneous with 
remuneration for the rendition of services to the Commonwealth is the 
practice explicitly prohibited by the statute. 

Section 91, however, is replete with exceptions to the general prohibi- 
tion contained therein. Jury service, certain service in an emergency, 
work as an election officer, service as an elected public officer, service 
in a confidential capacity in various agencies of state government, serv- 
ice as an auditor or master, certain services rendered to the General 
Court, and certain medical service are permitted. However, in two of 
those instances (service in a confidential capacity and certain emergency 
service), "there shall be deducted from the compensation of the services 
of any person [so] employed ... an amount equal to the retirement al- 
lowance or pension received by him." 

In addition, section 91 permits retired employees to serve by ap- 
pointment of the governor for a term of years, or to serve by appoint- 
ment of a mayor, city council, board of selectmen, or the General 
Court, but in those cases the employee 

"shall be paid the compensation attached to such position; 
provided, that he files with the treasurer of the governmental 
unit paying such pension or allowance, a written statement 
wherein he waives and renounces for himself, his heirs and 
his legal representatives, his right to receive the same for the 
period during which such compensation is payable." 
General Laws, Chapter 32, section 90B provides, in part: 

"Any person retired from the service of the common- 
wealth, . . . may waive and renounce for himself, his heirs 
and legal representatives any portion of the pension or re- 
tirement allowance payable to him from the commonwealth, 
. . . for such period as he may specify in such waiver and re- 
nunciation ..." 

One of my predecessors has construed section 90B as permitting the 
waiver of the entire amount of the pension (1963 Op. Atty. Gen'l 144), 
and I am in agreement with that construction. However, I cannot agree 
with so much of a still earlier opinion which appeared to reach a con- 
trary result and which held that section 91 was unaffected by the provi- 
sions of section 90B. That earlier opinion was premised on the conclu- 
sion, which I think was mistaken, that the intent of section 90B "was to 
permit veterans retired from the service of the Commonwealth ... to 
reduce the amount of their retirement allowances" so that the veterans' 
Federal pension rights would be unaffected. 1960 Op. Atty. Gen'l 41, 

While the General Court in 1955 did consider several bills which re- 
ferred only to waivers of pension rights by veterans, the legislation 
which was finally enacted contained broad, non-restrictive, unambigu- 
ous language. In my view, the compelling inference to be drawn from 

78 P.D. 12 

the statute as enacted is that any retired state employee, regardless of 
whether or not said employee is a veteran, may legally waive his retire- 
ment allowance and thereby render himself eligible for employment by 
the Commonwealth. Section 90B operates as an election available to any 
and all retired state employees to whom re-employment is offered by the 
Commonwealth. Each retired employee must decide whether he wants 
to continue to receive his retirement allowance or whether, in lieu of 
that allowance, he chooses to waive his right to receive that allowance 
for the opportunity of once again being gainfully employed by the Com- 
monwealth. In other words, section 90B frees any retired state em- 
ployee, if he so elects, from the general prohibition articulated in section 

The General Court could certainly have used more restrictive lan- 
guage in enacting section 90B, if its intent was to leave the prohibitions 
contained in section 91 unaffected. However, I believe that the Legisla- 
ture envisioned, as I do, the benefits to be gained by a broad waiver 
provision. The Commonwealth has many retired employees who pos- 
sess considerable expertise in their given fields. This expertise is lost to 
the Commonwealth when the employee retires. In some cases, the deci- 
sion to retire, as in the instant case, may have been premature. In return 
for the difference between the pension which would be payable and the 
regular rate of compensation of the position involved, the Common- 
wealth gains the services of a valuable public employee. Of course, the 
decision whether to offer re-employment to retired employees rests en- 
tirely with the appointing authorities involved, and a retired employee 
has no "right" to such re-employment. 

In direct response to your question, then, it is my opinion that section 
90B exempts a retired state employee who has executed a waiver there- 
under from the prohibitory language of section 91, and that, accordingly, 
the Commonwealth may make payment for services rendered by Francis 
E. Skerry, effective for the period of his re-employment by the Com- 
monwealth, so long as his waiver executed pursuant to section 90B re- 
mains in force. 

Very truly yours, 

Attorney General 

Number 16 January 28, 1972 

Honorable Richard E. McLaughlin 
Secretary of Public Safety 
Executive Office of Public Safety 
100 Nashua Street 
Boston, Massachusetts 021 14 

Dear Mr. Secretary: 

You have requested an opinion "whether the police officers in the 
Uniformed Branch of the State Police are authorized to form a collective 

P.D. 12 79 

bargaining unit within the meaning of Chapter 149 of the General Laws 
(Collective Bargaining Statute)." In an opinion rendered by my pred- 
ecessor on December 5, 1968, this same question was answered in the 
affirmative. Since the materials enclosed with your request indicate that 
there remains some controversy as to this question, I have reexamined 
the question and have determined that the answer remains in the affir- 

The Uniformed Branch of the State Police is not specifically excluded 
from engaging in collective bargaining by the terms of G. L. c. 149, § 
178F. The difficulty arises out of a possible interpretation of G. L. c. 
149, § 178D, which provides that state and local employees "have the 
right to form and join vocational or labor organizations . . ., " a right 
which is substantially less than, and a condition precedent to, the right 
to bargain collectively. That section contains the following cryptic sen- 

'This section shall not be applicable to police officers in 
the uniformed branch of the division of state police." 

The ultimate question is whether the above-quoted language repeals 
by implication St. 1950, c. 120, which specifically recognized the right of 
the state police to organize, or whether it merely defers to that statutory 
provision as the one applicable to the organizational rights of the state 
police. After careful consideration of the disparate elements of this con- 
troversy, I have concluded that the latter alternative is the correct one. 

The former alternative is not sufficiently evident from the language of 
§ 148D or from the legislative intent as ascertained by reference to other 
statutory provisions. As originally enacted by St. 1958, c. 460, section 
148D provided: 

"This section shall not be applicable to police officers in 
the employ of the commonwealth or any political subdivision 

On its face, this language did not preclude police officers from engag- 
ing in organizational activity since the basis for the inapplicability is un- 
determined. It could mean repeal of St. 1950, c. 120 which conferred 
upon state police officers the right to engage in organizational activity. 
However, since repeal by implication is not a favored doctrine, Brown 
v. Lowell, 8 Met. 172, Commonwealth v. Bloomberg, 302 Mass. 349, 
Homer v. Fall River, 326 Mass. 673, the alternative interpretation that 
the language merely defers to the specific provisions dealing with the 
state police in St. 1950, c. 129 is the more reasonable. 

Other considerations militate towards this conclusion. The basis for 
different treatment of policemen and other public employees is that the 
crucial police function of maintaining public order warrants continual 
presence on the job. See, Burton and Krider, The Role and Conse- 
quences of Strikes by Public Employees, 79 Yale L.J. 418, 432-437 
(1970). The Legislature has, however, confronted this problem directly 
by forbidding strikes by public employees, c. 149, § 178F(10), rather 

80 P.D. 12 

than circuitously by precluding police officers from organizing. In this 
regard, it should also be noted that in the context of collective bargain- 
ing of municipal employees, police officers were explicitly excluded 
from the definition of "employee" in c. 149, § 178G, as enacted by St. 
1965, c. 763, § 2. (This exception was deleted by St. 1966, c. 156.) In my 
opinion, the action of the Legislature in enacting St. 1969, c. 171, which 
amended G. L. c. 149, § 178D so that the latter applied to all public em- 
ployees except officers of the uniformed branch of the State Police, was 
merely recognition that there were no other statutory provisions govern- 
ing the organizational rights of local police generally. (Boston police had 
been granted the right to organize by St. 1949, c. 325.) In short, the or- 
ganizational rights of the police officers of the uniformed branch are un- 
affected by the provisions of G. L. c. 149, § 178D. 

The previous opinion rendered by my predecessor on this subject 
fully and adequately explored the question whether members of the 
State Police are "employees" as defined by G. L. c. 149, § 178F(1) and 
concluded that they do come within that definition. Therefore, it is my 
opinion that the police officers in the Uniformed Branch of the State 
Police are authorized to form a collective bargaining unit within the 
meaning of Chapter 149. 

Very truly yours, 


Attorney General 

Number 17 January 28, 1972 

Mrs. Mabel A. Campbell 
Director of Civil Service 
State House 
Boston, Massachusetts 02133 

Dear Mrs. Campbell: 

You have requested my opinion with respect to an interpretation of 
the words "established by law" as they appear in G. L. c. 31, § 1 (in- 
serted by St. 1968, c. 652), defining a "Department." You have posed 
the following question: 

"Are specific references in a Capital Outlay Act and Ap- 
propriation Act making an appropriation to a given facility by 
name sufficient to satisfy the requirement that they have been 
established by law as separate facilities and are not a part of 
the Central Department [of Mental Health]?" 
For the reasons stated hereinafter, I answer your question in the nega- 

In construing a statute, the proper object is to ascertain and effectuate 
the intent of the Legislature, as shown by the whole act, the law existing 
before its passage, and changes made, and the apparent motive for mak- 

P.D. 12 81 

ing them. City of Some rv Me v. Commonwealth, 225 Mass. 589, 593. St. 
1968, c. 652, § 1 amended Section 1 of Chapter 31 of the General Laws 
by inserting a new definition for the word "Department," as follows: 

" 'Department', a department, board or any division, in- 
stitutional unit or other unit of a department in case such unit 
is established by law, ordinance or by-law." 
St. 1968, c. 652, § 4 deleted the following paragraph from Section 15 of 
said Chapter 31: 

"The word 'department', as used in this section, shall 
mean a department, or any division, institutional unit or other 
unit of a department in case such a unit is established by law, 
ordinance or by-law or under authority thereof." 

Section 5 of Chapter 652 deleted the following sentence from Section 
15B of Chapter 31: 

"The word 'department', as used in this section, shall 
mean a department, board or commission, or any division, in- 
stitutional unit or other unit of a department in case such a 
unit is established by law, ordinance or by-law or under au- 
thority thereof." 

As you note in your letter, the above amendments were the result of 
House No. 4595, which included a special message from His Excel- 
lency, the Governor. The message stated that: 

"Our civil service law, in somewhat bewildering detail, 
specifies an order of procedure for making promotions. Es- 
sentially the procedure is this: First, an appointing authority 
may choose a person for promotion and give the job to him if 
he passes a qualifying examination, but only if he has served 
three years in his job in the next lower grade and if he is one 
of the three persons in that grade with the most seniority in 
terms of total service. Second, an appointing authority may 
ask for a competitive examination open to employees who 
have served at least a year in one or more lower grades, as 
the Director determines, in the department." House No. 
4595, 1968, p. 5. 

The message then recommended that the word "Department" ' . . . 
be redefined and broadened to include only units established by law" 
(House No. 4595, 1968, p. 6) in order to modernize and strengthen the 
Massachusetts Civil Service. This legislative history is, in my view, 

A reference to a departmental unit in an appropriation act is not suffi- 
cient in my opinion to establish such unit as a "department." If it were, 
the plain intent of Chapter 652 would be subverted. The dozens of units 
referred to in appropriation acts would each have to be considered sepa- 
rate "departments" for the purposes of the civil service law, a result 
Chapter 652 sought to eliminate. Cf. City of Newton v. Trustees of 
State Colleges, Mass. Adv. Sh. (1971) 1035, 1036-1037. 

82 P.D. 12 

A statute must be so interpreted as to remedy the mischief and elimi- 
nate the evils existing under pre-existing law, if such an interpretation is 
reasonably possible. Desmarais v. Standard Ace. Ins. Co., 331 Mass. 
199, 202. Thus a proper construction of Chapter 652 which will effec- 
tuate the legislative intent dictates the conclusion that a specific refer- 
ence in a Capital Outlay Act or Appropriation Act making an appropria- 
tion to a given facility by name is not sufficient to confer upon that facil- 
ity the status of a departmental unit established by law. 

Very truly yours, 


Attorney General 

Number 18 January 28, 1972 

Mrs. Mabel A. Campbell 
Director of Civil Service 
State House 
Boston, Massachusetts 02133 

Dear Mrs. Campbell: 

You have requested my opinion whether part-time employees of the 
Springfield Civic Center such as ushers, ticket-takers, and security 
guards must be hired pursuant to the civil service law and rules or 
whether the services performed by such employees may be furnished by 
a contractor or concessionaire. My answer is that St. 1968, c. 377, which 
authorized the establishment of the Civic Center Commission in the 
City of Springfield, left it within the managerial discretion of the Com- 
mission to furnish relevant services either by using city employees, 
granting concessions, or a combination of the two. 

The relevant statutory provision is St. 1968, c. 377, § 7, which pro- 
vides in pertinent part: 

"Notwithstanding the provisions of any general or special 
law or ordinance to the contrary, the [civic center] commis- 
sion is hereby authorized and empowered: — 


(b) To provide through employees of the city under the 
commission's supervision or by the grant of one or more con- 
cessions to private persons or firms or in part through such 
employees of the city and in part by the granting of one or 
more concessions to private persons or firms for the furnish- 
ing of services and things for the accommodation of persons 
admitted to or using the civic center or any part, facility or 
function thereof." 
The provisions in § 7(f) of Chapter 377 dealing with the applicability of 
the civil service law and rules would become operable only if the Civic 
Center Commission determined to furnish services by using employees 

P.D. 12 83 

of the City. In that event, the employees must be hired pursuant to the 
civil service law and rules, and it would be immaterial, so far as the ap- 
plication of said law and rules is concerned, whether the employees 
were full-time or part-time. 

Very truly yours, 

Attorney General 

Number 19 January 28, 1972 

Honorable John F. X. Davoren 
Secretary of the Commonwealth 
State House 
Boston, Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion with respect to your powers and 
duties under G. L. c. 156B, §§ 6 and 79 to receive and to approve arti- 
cles of consolidation or merger. It appears from your letter and from ad- 
ditional information which has been furnished to me that Northeast Air- 
lines, Inc., a Massachusetts corporation, has agreed to merge with Delta 
Airlines, Inc., a Delaware corporation, with Delta to be the surviving 
corporation. Both corporations are air carriers subject to the regulatory 
jurisdiction of the Civil Aeronautics Board under the Federal Aviation 
Act of 1958, as amended (49 U.S.C. § 1301 et seq., Pub. L. 85-726). 

While the Northeast/Delta merger agreement has received the ap- 
proval of the Boards of Directors of both corporations and the stock- 
holders of Delta, the agreement is still subject to the approval of the 
stockholders of Northeast. Because both corporations are subject to the 
jurisdiction of the Civil Aeronautics Board, the Federal Aviation Act 
requires Board approval of the merger. 49 U.S.C. § 1378. Because 
foreign air routes are involved, the further approval of the President of 
the United States is required under the terms of 49 U.S.C. § 1461. 

You have advised that an application for approval of the merger has 
been filed with the Civil Aeronautics Board, a hearing has been held, 
and a Hearing Examiner has issued a recommended initial decision. It 
also appears that written and oral arguments have been presented to the 
Board, but it is uncertain just when a final decision will be issued by the 
Board. It is likewise uncertain when the approval of the President will 
be obtained. 

Your question arises from the language used in G. L. c. 156B, § 79 
which provides, in paragraph (c) thereof as follows: 

"The agreement of consolidation or merger shall be 
adopted by each of the constituent corporations in accor- 
dance with the laws of the state under which it is organized, 
and in the case of a Massachusetts corporation in the manner 
provided in section seventy-eight. Unless such agreement is 

84 P.D. 12 

abandoned pursuant to provisions contained therein, articles 
of consolidation or merger shall be submitted to the state 
secretary within sixty days after the approval of the a- 
greement by the last constituent corporation to do so. Such 
articles of consolidation or merger shall set forth in full the 
agreement of consolidation or merger, shall state the effective 
date of the consolidation or merger, shall state the effective 
date of the consolidation or merger determined pursuant to 
such agreement and shall be signed by the president or a vice 
president and the clerk or an assistant clerk of each con- 
stituent corporation, or, in the case of a corporation or- 
ganized under the laws of another state, by officers having 
corresponding powers and duties, who shall make affidavit or 
state under the penalties of perjury (1) in the case of each 
constituent corporation not organized under the laws of 
Massachusetts, that the agreement has been duly adopted 
under the laws of the state under which such constituent cor- 
poration is organized, and (2) in the case of each constituent 
corporation organized under the laws of Massachusetts, that 
the agreement has been duly executed by the officers and has 
been approved in the manner required by section seventy- 
eight by the stockholders of such corporation or, if permitted 
under subsection (c) of section seventy-eight, by the directors 
of such corporation. If the resulting or surviving corporation 
is to be governed by the laws of Massachusetts, the form on 
which articles of consolidation or merger are filed shall con- 
tain the information required by subsection (d) of section 
seventy-eight in the case of articles of consolidation or 
merger filed thereunder, which shall not for any purpose be 
treated as a permanent part of the articles of organization of 
the resulting or surviving corporation. The consolidation or 
merger shall become effective when the articles of consolida- 
tion or merger are filed in accordance with section six, unless 
said articles specify a later effective date not more than thirty 
days after such filing, in which even the consolidation or 
merger shall become effective on such later date.'' (Emphasis 
It is clear from the statute that the articles of merger must be submit- 
ted to you within sixty days "after the approval of the agreement" and 
that the "merger shall become effective when the articles . . . are filed in 
accordance with section six [of chapter 156B]." That section, in turn, 

"The state secretary shall examine each document submit- 
ted to him under the provisions of this chapter. If he finds 
that the provisions of law relative thereto have been complied 
with, he shall endorse his approval thereon; and upon such 
approval and payment of the fee provided in section one 

P.D. 12 85 

hundred and fourteen such document shall be deemed to be 
filed with the state secretary. The state secretary shall keep a 
record, conveniently indexed, of each such document, of his 
endorsement of approval, if given, of the date of submission, 
and of the date on which such document is filed, and shall 
keep such documents on file in his office in a manner conven- 
ient for public inspection. He shall cause a photographic or 
other copy to be made of articles of organization and amend- 
ments thereof so filed showing his approval endorsed 
thereon, and shall deliver the same to the corporation. 

"The state secretary shall report to the attorney general in- 
stances of neglect or omission on the part of corporations to 
comply with the provisions of law so that the attorney general 
may enforce the penalties therefor." 

Since section six requires you to examine the articles of merger and 
"endorse [your] approval thereon," you ask whether you may accept 
the articles of merger without pre-pay ment of the filing fee, thereby de- 
ferring payment of the filing fee and your examination and approval until 
such time as the Civil Aeronautics Board and the President have acted 
on the merger. I answer your question in the affirmative. 

The statutory scheme for submitting and filing articles of merger read 
in the light of the pertinent provisions of the Federal Aviation Act of 
1958 raise substantial questions as to the effectiveness of the Massachu- 
setts statues under the Supremacy Clause of the Constitution of the 
United States (Article 6). It could be persuasively argued that the 
sixty-day limitation provided in G. L. c. 156B, § 79 does not run until 
final approval of the President is obtained pursuant to 49 U.S.C. § 1461. 
However, I find it unnecessary to decide the constitutional question, 
because, in my view, the statutes which are set out supra permit you to 
accept the articles of merger within the sixty-day period, deferring to a 
later date payment of the filing fee, examination, final approval and filing 
of the articles. 

General Laws, c. 156B, § 79 only requires that the articles of merger 
be "submitted" within the sixty-day period. Upon such submission, the 
provisions of section 6 control, and that section is silent as to the precise 
timetable that the filing fee be paid when the articles are submitted; on 
the contrary, section 6 provides that once the articles have received 
your approval and the filing fee has been paid, then the articles shall be 
deemed to be "filed". At that moment, the provisions of section 79 
again apply, and the merger is deemed to then become effective. 

I see no reason why the parties may not now submit the articles of 
merger, and, once the approvals of the Civil Aeronautics Board and the 
President are obtained, then pay the filing fee, thereby initiating the ap- 
proval process. The statutes to which I have referred permit such a 
course of action, which, under the circumstances, appears to be emi- 
nently sound and practicable. 

Very truly yours, 

Attorney General 

86 P.D. 12 

Number 20 January 31, 1972 

Mr. Llewellyn T. Schofield, P.E., R.L.S. 

Civil Engineer-Surveyor Member 
Board of Registration of Professional 

Engineers and of Land Surveyors 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Schofield: 

You have requested an opinion "whether or not the preparation of as- 
sessors maps for the towns and cities of the Commonwealth falls within 
the practice of land surveying as regulated by Chapter 112 of the Gen- 
eral Laws as amended." Subject to the caveat expressed in the last 
paragraph of this letter, I answer your question in the negative. 

As indicated by the supporting material enclosed with your request, 
the preparation of assessors' maps generally involves the aerial photo- 
graphy of a city or town, the gathering and accumulation of lot line own- 
ership data from available sources, the placing of such data on aerial 
map base sheets, some field work to contact property owners and define 
boundaries not described or identified by other means, the final prepara- 
tion of maps which is accomplished by the use of mechanical plotters 
and by hand, the preparation of a map and lot numbering system, and 
the preparation of an index file. 

The "practice of land surveying" is precisely defined by G. L. c. 112, 
§ 81D, as amended by St. 1970, c. 707, § 3, as: 

"... any service or work, the adequate performance of 
which involves the application of special knowledge of the 
principles of mathematics, the related physical and applied 
sciences, and the relevant requirements of law for adequate 
evidence to the act of measuring and locating lines, angles, 
elevations, natural and man-made features in the air, on the 
surface of the earth, within underground workings, and on the 
beds of bodies of water for the purpose of determining areas 
and volume, for the monumenting of property boundaries, for 
locating or relocating any of the fixed works embraced within 
the practice of civil engineering, and for the platting, and lay- 
out of lands and subdivisions thereof, including the topog- 
raphy, alignment and grades of streets, and for the prepara- 
tion and perpetuation of maps, record plats, field note records 
and property descriptions that represent these surveys." 

Since the practice of or the offer to practice land surveying without 
being registered in accordance with G. L. c. 112, §§ 81D-81T may entail 
a criminal sanction, those provisions must be sufficiently explicit to in- 
form those who are subject to them what conduct on their part will ren- 
der them liable to that penalty. Connally v. General Construction Co., 

P.D. 12 87 

269 U.S. 385, 391; Opinion of the Justices, 353 Mass. 779. In this re- 
gard, G. L. c. 112, § 81 D specifically refers to the basic "act of measur- 
ing and locating" the characteristics of land for the express purpose of 
"determining areas and volumes." This work requires a high degree of 
precision because its product is used for determining property bound- 
aries, performing tasks ancillary to the practice of civil engineering, and 
the drafting of documents which represent the surveys. 

In comparison, the preparation of assessors' maps is primarily con- 
cerned with "gathering and accumulating" the data contained in existing 
land surveys. Moreover, a somewhat lesser degree of precision is re- 
quired because the purpose of the maps is only to sufficiently describe 
the property in question in order to provide effective notice of which 
property is being taxed. Roberts v. Welsh, 192 Mass. 278, 280; Lowell v. 
Marden & Murphy, Inc., 321 Mass. 597, 599; Levine v. Jonkheer Realty 
Corporation, 17 N.Y.S.2d.926. As such, the practice of land surveying 
and the preparation of assessors' maps must be considered sufficiently 
distinct for the purposes of the regulation of land surveying as contem- 
plated by G. L. c. 112, § 81D-81T. 

The material enclosed with your letter does, however, indicate that 
the occasion might arise in the course of preparing an assessor's map 
where the services of a registered land surveyor would be required. This 
would occur when, there being inadequate survey records available for 
use, field measurements are undertaken and extrapolated to provide the 
necessary survey data. 

Very truly yours, 

Attorney General 

Number 21 January 31, 1972 

Mr. Homer W. Bourgeois, Chairman 
Lowell Technological Institute 

Building Authority 
Lowell, Massachusetts 

Dear Mr. Bourgeois: 

You have requested my opinion with respect to certain questions 
raised by the enactment of St. 1970, c. 833, § 2A, and St. 1971, c. 719, § 
2A, as those statutes relate to the Lowell Technological Institute Build- 
ing Authority (the Authority). Section 2A of St. 1970, c. 833, provides in 

"To meet the estimated cost of utilities furnished projects 
constructed by the building authorities, established by chap- 
ter five hundred and fifty-seven of the acts of nineteen 
hundred and sixty-one . . ., the comptroller shall transfer to 
the General Fund on or after July the first of each fiscal year 

88 P.D. 12 

beginning July the first, nineteen hundred and seventy-one 
from the receipts of said projects the following amounts: 

From Item: . . . 

7210-0000 — $30,000." 

Section 2A of St. 1971, c. 719, is substantially the same, but raises the 
amount to $33,000 effective July 1, 1972. Item 7210-0000 is contained in 
St. 1970, c. 480, § 2, and c. 833, § 2, and in St. 1971, c. 719 § 2 (appro- 
priations acts), and is the designation for appropriations for the mainte- 
nance of the Lowell Technological Institute (the Institute). You ask 
whether, in view of certain contractual obligations into which the Au- 
thority has entered, the Legislature has exceeded its powers in enacting 
§ 2A. 

The answer to your question depends upon a consideration of the ef- 
fect of § 2A in light of the purposes and powers of the Authority and the 
contracts it has made. 

The Authority was established by St. 1961, c. 557, as amended by St. 
1963, c. 685 (the Act), as a body politic and corporate, and not subject to 
the control of any department or agency of the Commonwealth (§ 2). It 
has the power to sue and be sued in its own name (§ 4(d) ); to acquire, 
hold and dispose of property (§ 4(i) ); to lease land from the Common- 
wealth (§ 4(j) ); to borrow money and issue its bonds (§ 4(g) ); and to 
make contracts (§ 4(m) ). The Authority is thus "not merely a board or 
commission of the state government" but "constitute^] an entity in it- 
self and . . . [has] an existence apart and distinct from that of the Com- 
monwealth." Opinion of the Justices, 334 Mass. 721, 733-734, and cases 
cited; Commonwealth v. Toomey, 350 Mass. 345, 347-351. 

The purpose of the Authority is to construct and maintain dor- 
mitories, dining commons and other buildings for the use of the Institute 
(§ 3). In order to accomplish that purpose, the Authority is granted the 
power "[t]o make and enter into all contracts and agreements necessary 
or incidental to the performance of its duties and the execution of its 
powers under this act ..."(§ 4 (m) ). The Act further provides in § 5, 
as amended by St. 1963, c. 685, that the Trustees of the Institute may, in 
the name of and on behalf of the Commonwealth, make certain contracts 
with the Authority. 

You state that pursuant to the Act the Authority has entered into a 
Contract for State Financial Assistance and Services (the Assistance 
Contract) with the Board of Trustees (the Trustees) of the Institute, act- 
ing on behalf of the Commonwealth, wherein the Trustees have agreed 
(§ 8.4) that at such time as the Trustees accept the Authority's project 
for occupancy, "the Commonwealth . . . shall, subject to the availability 
of appropriations therefor, make officers, employees, facilities, supplies 
and materials of the Institute available to the Authority to furnish" cer- 
tain services with respect to the project, including cleaning and heating, 
electricity, water, gas and other utilities. 

P.D. 12 89 

On the same date that it entered into the Assistance Contract, the Au- 
thority also entered into a Trust Agreement to secure the bonds to be 
issued under the authority of the Act. The recitals of the Trust Agree- 
ment expressly refer to the Assistance Contract. The Authority has 
pledged the net revenues, after payment of certain current expenses, 
from rentals, fees, and so forth, derived from the project, to the bond 
trustee to secure payment of the principal of and interest on the bonds. 
The agreement made by the Trustees, on behalf of the Common- 
wealth, to furnish utilities to the Authority's project is clearly authorized 
by the Act. Section 5 of the Act, as amended by St. 1963, c. 685, pro- 
vides that the Trustees may agree in the name of the Commonwealth to: 
"(a) Sell, convey or lease to the Authority real or personal 
property owned by the commonwealth in Lowell or grant 
easements, licenses or any other rights or privileges therein to 
the Authority . . .; 

"(b) Cause private ways, sidewalks, footpaths, ways for 
vehicular travel, parking areas, water, sewage or drainage 
facilities and similar improvements and steam service and 
other utilities and connections for heating and other neces- 
sary purposes to be furnished to or in any project carried out 
by the Authority; 

"(c) Make available to the Authority the services of offi- 
cers and employees of the Institute and office space and 
facilities in the Institute for, among other things, billing and 
collecting rents, fees, rates and other charges for the use and 
occupancy of property of the Authority by the Institute or 
any person, organization or association referred to in section 
three; renting and leasing rooms and other accommodations 
in the buildings and structures of the Authority; cleaning, 
heating, daily operation of any repairs to and maintenance of 
such buildings and structures and other property of the Au- 
thority; and keeping all books of account for the Authority; 

"(d) Do any and all things authorized by law and necessary 
or convenient to aid and co-operate with the Authority in car- 
rying out the purposes of the Authority and exercising its 
powers hereunder and in complying with the provisions of 
any trust agreement into which the Authority may enter." 

However, by its enactment of St. 1970, c. 833, § 2A, quoted above, 
and later of St. 1971, c. 719, § 2A, the Legislature appears to have mod- 
ified the authorization given the Trustees in § 5 of the Act. Section 2 A 
directs the Comptroller to transfer a certain amount to the General Fund 
"from the receipts of the Authority. As you point out, there is some 
ambiguity in that § 2A also states that the transfer is "[f]rom Item . . . 
7210-0000. '' The receipts of the Authority are received on the 
Authority's own account and are not "money received on account of the 

90 P.D. 12 

commonwealth." Opinion of the Justices, 334 Mass. 721, 733-734, and 
cases cited; Opinion of the Justices, 332 Mass. 745, 750-754. Conse- 
quently, such revenues do not come under the jurisdiction or into the 
possession of the Comptroller or the Executive Office for Administra- 
tion and Finance. See G. L. c. 7, §§ 3, 4, 4A, 13, 17, 18. Item 7210-0000, 
on the other hand, is an appropriation of Commonwealth funds for the 
maintenance of the Institute. However, in my opinion, the references to 
the two sources are not necessarily contradictory. 

Because the receipts or revenues of the Authority are not Common- 
wealth funds, the Comptroller has no authority to "transfer" any part of 
the receipts directly to the General Fund. However, the receipts of the 
Authority are, pursuant to the Assistance Contract, collected by the In- 
stitute and kept in a separate account. The Institute has expended funds 
from appropriation Item 7210-0000 in order to provide utilities to the Au- 
thority. In my opinion, § 2A of the appropriation act constitutes a direc- 
tion to the Institute to transfer from that separate account certain sums 
as reimbursement for that expenditure, and to place those sums in the 
account maintained under Item 7210-0000. The Comptroller is then to 
transfer the sums to the General Fund. 

Although the Authority is, as noted above, an entity distinct from the 
Commonwealth, it is nevertheless a public corporation, and "a public 
instrumentality" (§ 2 of the Act). The Legislature may therefore order 
its funds transferred back to the Commonwealth. See New Bedford v. 
New Bedford, W.H., M.V. & N. SS. Authy., 336 Mass. 651, 656, 
appeal dismissed, 358 U.S. 53. The question arises, however, whether 
in so doing the Legislature has abrogated any contractual rights of the 
holders of Authority bonds in contravention of Article 1, § 10, of the 
Constitution of the United States. 1 

It is my opinion that the enactment of § 2A has not unconstitutionally 
abrogated any contractual rights of the bondholders. The requirement 
that the Authority reimburse the Commonwealth for the cost of utilities 
furnished to the project can mean that there is greater likelihood that 
some bonds which would otherwise be retired in advance of the due date 
will now not be retired until that date. Nevertheless, I "do not think that 
the contractual rights or vested interests of the bondholders have 
thereby been substantially impaired." New Bedford v. New Bedford, 
W.H., M.V. & N . SS. Authy., 336 Mass. 651, 657, appeal dismissed, 
358 U.S. 53. Section 6.1 of the Assistance Contract provides (as au- 
thorized by § 10 of the Act, as amended) that the Commonwealth 
guarantees the payment of the principal of and interest on the bonds. 
"This is the real security underlying the . . . operation which the bonds 
have financed." It does not appear "that the changes in security posi- 
tions which are caused by . . . [St. 1970, c. 833, § 2A] materially affect 
the value of the bonds or the certainty of payment of principal or in- 
terest." New Bedford case, supra, at 657; compare Opinion of the 
Justices, 356 Mass". 775, 793-794. 

1 "No State shall pass am .1 aw impairing the Obligation of Contracts ..." 

P.D. 12 91 

It is true that the enactment of § 2A does not appear to have been an 
exercise of the "police power" of the Commonwealth "to establish reg- 
ulations necessary to secure the health, safety, good order, comfort, or 
general welfare of the community ..." See Opinion of the Justices, 341 
Mass. 760, 783-786. Such regulations, which were present in the New 
Bedford case, supra, 2 would justify a direct and substantial impairment 
of contractual obligations. However, no such justification is necessary 
where there is no serious or substantial impairment of contractual rights 
or vested interests. See Home Bldg. & Loan Ass'n v. Blaisdell, 290 
U.S. 398, 431-434. Moreover, even if the enhancement of the possibility 
of early retirement of the bonds due to the State's payment of the cost of 
utilities is viewed as a "substantial" interest of the bondholders not- 
withstanding the Commonwealth's guaranty, it is not a right of the 
bondholders under the Assistance Contract. Section 8.4 of that Contract 
provides that the Commonwealth will pay for the cost of utilities "sub- 
ject to appropriation therefor." In view of the language of the Assis- 
tance Contract, it cannot be said that the Trustees made an uncondi- 
tional promise on behalf of the Commonwealth to pay for the utilities. 
Consequently, it was open to the Legislature to restructure the financial 
arrangements of the Authority in order to require it to pay the cost of 
utilities from its revenues. 

Very truly yours, 

Attorney General 

Number 22 February 11, 1972 

Dr. Edward R. Willett, Chairman 
Consumers' Council 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Doctor Willett: 

You have requested my opinion with respect to several questions aris- 
ing from the approval by the Commonwealth's Department of Public 
Utilities of rates and tariffs to be charged by the New England Tele- 
phone and Telegraph Company. Specifically, you ask (1) whether the 
Department of Public Utilities may promulgate a rate order without a 
public hearing at which interested parties are afforded an opportunity to 
be heard and (2) if the Department may not do so, what remedies are 
available to aggrieved parties. Or, as stated in your letter, the matter for 
resolution is "whether or not the action taken by the DPU [regarding 
the tariff revisions filed by the Company] was proper and in accordance 
with the requirements of G. L. c. 159 and G. L. c. 30A." Because the 
statutory period for claiming an appeal is short, I have given your re- 
quest for an opinion expedited treatment. 

2 See also Massachusetts Port Aiithx. v. Treasurer and Recr. (Jen., 352 Mass. 755, 762-763. 

92 P.D. 12 

Your request arises because following the filing of new schedules of 
rates and tariffs by the Company and the suspension of the same by the 
Department (see G. L. c. 159, § 20), the Department entered into an 
agreement with the Company as to the schedule of rates and tariffs 
which would be effective for the Company's services rendered to 
Massachusetts subscribers. No public hearing was held prior to this set- 

The Company's latest tariff revisions which were filed on October 1, 
1971 were preceded by tariff revisions filed on July 15, 1969. The latter 
revisions were the subject of extended administrative hearings before 
the Department between February 13 and May 29, 1970, and, on June 
10, 1970, the Department disallowed the revisions but allowed the Com- 
pany to file tariffs which would increase gross annual revenues by ap- 
proximately $7,713,000. The Department's order in this respect was ap- 
pealed to the Supreme Judicial Court, and, on November 11, 1971, the 
Court rendered its decision. New England Telephone and Telegraph 
Company v. Department of Public Utilities, Mass. Adv. Sh. (1971) 
1613. In a comprehensive and lengthy opinion by Mr. Justice Quirico, 
the Court remanded the proceeding to the Department "for reconsidera- 
tion and further action consistent with [the] opinion on the subjects of 
the Company's capital structure — specifically its debt and equity 
ratios, the rate of return on its capital, and the determination of certain 
of the test year expenses." Id. at 1660. The issues raised by the 
Company's appeal and decided by the Court were exhaustively briefed 
and argued, and, at the time the Court issued its opinion, I determined 
that no Federal constitutional issues were raised by the Court's decision 
and thus further review by the Supreme Court of the United States was 
precluded. The decision of the Supreme Judicial Court is therefore final 
and binding with respect to the issues raised and decided in that appeal. 

Subsequent to the filing of the appeal but prior to the Court's deci- 
sion, the Company filed the new tariff revisions to which I have refer- 
red. Those revisions were suspended by the Department, and the revi- 
sions were made the subject of a departmental docket number. Subse- 
quent to the filing of those revisions, of course, the Department was 
given the benefit of the Court's views on the questions raised by the ap- 
peal on the first tariff revisions. The Department was then in a unique 
position to test the second revisions by applying the Court's guidelines. 

Your letter erroneously states that G. L. c. 159, § 20 "specifically re- 
quires that the Department" hold a hearing under the circumstances. It 
is precisely because there is no such specific requirement in section 20 
that obliges me to state that the Department has discretion whether to 
hold a public hearing under that section. As much as many of us who 
may disagree with the Department's exercise of its discretion in this re- 
spect would have preferred an opportunity to participate in and observe 
at a public hearing, the Commissioners of the Department of Public 
Utilities, by virtue of the authority vested in them upon appointment by 
the Governor, are charged with the decision whether to hold a hearing 
and permit public participation. 

P.D. 12 93 

The statutory scheme imposed with regard to the filing and approval 
of common carrier rates permits rate and tariff revisions to be filed on 
thirty days' notice. G. L. c. 159, § 19. Section 20 of Chapter 159 pro- 
vides for a hearing on such rate revisions, as follows: 

"Whenever the department receives notice of any changes 
proposed to be made in any schedule filed under this chapter, 
it may, either upon complaint or upon its own motion, and 
after notice, hold a public hearing and make investigation as 
to the propriety of such proposed changes ..." (Emphasis 

It requires no extended discussion to conclude, as I do, that the deci- 
sion whether or not to hold a public hearing is a matter committed to the 
sound discretion of the Department. Cline v. Cline, 329 Mass. 649, 652; 
cf. Burke v. Metropolitan District Commission, 262 Mass. 70, 74-75; 
Nason v. Commissioner of Mental Health, 351 Mass. 94, 96-97. Com- 
pare the language of G. L. c. 175, § 113B ('The commissioner shall, 
annually on or before September fifteenth, after due hearing and inves- 
tigation, fix and establish . . . premium charges . . ."). In conclusion, 
then, it is my opinion that the Department of Public Utilities may ap- 
prove rates to become effective without a public hearing. 

Your request also raises the question whether the Department com- 
plied with the provisions of G. L. c. 30A. The answer depends upon 
whether the Department's rate order constituted a "regulation" within 
the meaning of G. L. c. 30A, § 1(5). That question appears to have been 
settled in the negative by the decision of the Supreme Judicial Court in 
Associated Industries of Massachusetts v. Commissioner of Insurance, 
356 Mass. 279, 282, 284. 

In answer to your second question, any party aggrieved by a decision 
or order of the Department of Public Utilities, entered with or without a 
public hearing, may, pursuant to the provisions of G. L. c. 25, § 5, ap- 
peal to the Supreme Judicial Court by filing a petition for appeal with the 
Department within twenty days after the date of the order or decision 
sought to be appealed. 

Very truly yours, 

Attorney General 

Number 23 February 25, 1972 

Honorable Bruce Campbell 
Commissioner of Public Works 
100 Nashua Street 
Boston, Massachusetts 02114 

Dear Commissioner Campbell: 

You have requested my opinion concerning the correct interpretation 
of the formula expressed in St. 1971, c. 497, § 14. That section, which 

94 P.D. 12 

now appears as G. L. c. 81, § 31, provides that the Commissioner of 
Public Works shall annually notify the State Tax Commission of the 
amounts apportioned to each city or town from that portion of the 
Highway Fund allocated for reimbursing the cities and towns for costs 
incurred in constructing, maintaining and policing their streets and 
roads. The section states, in pertinent part: 

"The portion of the Highway Fund allocated for reim- 
bursements to cities and towns for costs actually incurred in 
constructing, maintaining and policing city or town streets or 
roads shall annually be apportioned among the several cities 
and towns as follows: 


(a) The amount apportioned to each city and town in any 
calendar year shall be the amount of the 'equalizing municipal 
highway grant' for such city or town multiplied by the 
number of miles of streets and roads in such city or town. 
The 'equalizing municipal highway grant' for such city or 
town shall be the total of a basic mileage allowance of four 
hundred dollars per mile plus an additional road-use allow- 
ance of seven dollars per motor vehicle per road-mile less an 
equalizing deduction of ten cents per thousand dollars of 
equalized valuation per mile." (Emphasis supplied.) 
You ask my opinion "whether the Department's [Department of Pub- 
lic Works] interpretation of the formula expressed in said section 31 is 
correct." Reduced to algebra, this interpretation is as follows: 

(400 x miles + $7.00 Vehicles — 


.10 Equal Val.l $1,000) x Miles 

I agree with your Department that 400 should be multiplied by the 
number of miles in each city or town. 

The wording of St. 1971, c. 497, § 14 is the best evidence of the intent 
of the Joint Committee which drafted the statute. Since "per mile" ap- 
pears in the wording, it should thus also appear in the formula as ex- 
pressed algebraically. Words which appear in a statute and have a clear 
and definite meaning as do "per mile" cannot be ignored. Corcoran v. 
5. S. Kresge Co., 313 Mass. 299; see also, G. L. c. 4, § 6 and Roberts 
v. State Tax Commission, 1972 Mass. Adv. Sh. 25, 27; City Council of 
Peahody v. Board of Appeals of Peabody, 1971 Mass. Adv. Sh. 1881, 
1882 ("We must construe the statute as it is written.") 

Such an interpretation of the amounts to be apportioned among the 
various cities and towns under St. 1971, c. 497 would not, moreover, re- 
sult in a required distribution greater than the amount in the Highway 
Fund allocated for such reimbursement, irrespective of what that 
amount is at any given time, since section 13 of Chapter 497 provides for 

P.D. 12 95 

the pro rata distribution of these funds. That section, which amended G. 

L. c. 58, § 18B, provides in pertinent part as follows: 

"If upon any date of distribution the amount available for 
distribution under this section is insufficient to make the full 
distributions required by said section thirty-one of said chap- 
ter eighty-one, the distributions thereunder shall be the 
amount otherwise due each city or town under said section 
multiplied by a fraction, the numerator of which shall be the 
amount available for distribution under this section and the 
denominator shall be the total amount otherwise due for the 
several cities and towns under the provisions of said section 
thirty-one of said chapter eighty-one." 
In conclusion, then, your Department's interpretation of the formula 

expressed in St. 1971, c. 497, § 14 is correct. 

Very truly yours, 

Attorney General 

Number 24 . March 7, 1972 

Mr. Henry Clay 

Executive Secretary 

Council Chamber 

State House 

Boston, Massachusetts 02133 

Dear Mr. Clay: 

On behalf of the Executive Council, you have requested my opinion 
on the legality of the nomination by the Governor of Paul G. Garrity to 
be Judge of the Housing Court of the City of Boston. It appears that 
Mr. Garrity is a resident of Dedham in the County of Norfolk, and the 
Council's question arises because of the provisions of G. L. c. 185A, § 8 
(inserted by St. 1971, c. 843, § 1), which provide: 

'The housing court shall have one judge who shall be a res- 
ident of the city [of Boston] and a member of the bar ..." 

The nomination and appointment of judicial officers is governed by 
Pt. 2, c. 2, § 1, Art. IX of the Constitution of the Commonwealth, which 

"All judicial officers . . . 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 ap- 

The qualification set forth in G. L. c. 185 A, § 8 that the judge of the 
Housing Court be a resident of the City of Boston, read in the light of 
the applicable constitutional provision, leads me to conclude that the 

96 P.D. 12 

person nominated need only meet the residency requirement prior to his 
appointment. In the statute creating this position, the General Court in 
its wisdom used language different, for example, from that used in reor- 
ganizing the police department of the City of Boston, where the act pro- 
vided at that time, "No person shall be appointed to said police unless 
at the time of his appointment he is, and for at least two years im- 
mediately prior thereto has been, a resident of said city, ..." (Em- 
phasis supplied) St. 1962, c. 322, § 1 (inserting a new section 10 in St. 
1906, c. 291). 

Appointment occurs, of course, when the Council has given its advice 
and consent to the nomination and the judicial commission has been is- 
sued. In 1894, the then Attorney General ruled, with respect to ap- 
pointment to the office of justice of the peace: 

"In my opinion, the appointment is complete when the seal 
of the Commonwealth of Massachusetts is affixed to the 
commission, if not before. The person named in the commis- 
sion then holds the office to which he has been appointed, 
and, the tenure of the office being fixed by the Constitution, 
his commission cannot be revoked. Pub. Sts. c. 21, § 1." 1 
Op. Atty. Gen'l 140, 141. 
Your letter does not indicate that Mr. Garrity intends to change his 
residence from Dedham to Boston, although he would certainly have to 
do so before his appointment to satisfy the statute. Since it is my opinion 
that the appointment may not be made until the nominee establishes res- 
idency in the City of Boston, it would appear to rest within the sound 
discretion of the Council whether to advise and consent on the nomina- 
tion now or to await proof of such residency before considering the 
nomination further. However, I cannot say that as a matter of law the 
nomination itself was illegal because the nominee had not established 
residency within the City prior to the date of nomination. The language 
of the statute is such as only to require that the judge be a resident of the 
City prior to entering upon and during the time while exercising the 
duties of his judicial office. 

Very truly yours, 

Attorney General 

Number 25 March 10, 1972 

Honorable John W. Sears, Commissioner 

Metropolitan District Commission 

20 Somerset Street 

Boston, Massachusetts 02108 

Dear Commissioner Sears: 

You have requested my opinion with respect to the authority of the 
Department of Public Health (Department) to order the Metropolitan 

P.D. 12 97 

District Commission (Commission) to fluoridate the water it supplies for 
domestic use in the metropolitan water district. You have also requested 
my opinion regarding whether the Commission has authority to fluori- 
date such water. 

The metropolitan water district comprises thirty-two cities and towns 
near Boston. Under § 10 of c. 92 of the General Laws, the Commission 
is responsible for supplying to such cities and towns a sufficient supply 
of water for domestic use and for securing and protecting the purity of 
such water. The Quabbin Reservoir is the primary source of water 
which flows from there through aqueducts, reservoirs and pipelines to 
the consumers in the metropolitan water district. 

On or about March 9, 1971, the Department issued to the Commission 
the following order: 

"The Commissioner of the Department of Public Health, 
Commonwealth of Massachusetts has determined that the 
fluoride content of the public water supply, including reser- 
voirs and distribution systems, for domestic use in the cities 
and towns of the Metropolitan Water District, operated by 
the Metropolitan District Commission, is not at optimum 
level for sound dental health and has so notified the local 
boards of health of the cities and towns within said district. 

"The Department of Public Health, after making full and 
sufficient inquiry, considers the upward adjustment of the 
fluoride content of that water supply system available for 
domestic use in the cities and towns of the Metropolitan 
Water District to be in the best interests of the inhabitants of 
the cities and towns within said district. 

"The Department is further of the opinion that the upward 
adjustment of the fluoride content of that water supply sys- 
tem available for domestic use in the cities and towns of the 
Metropolitan Water District is necessary to insure the deliv- 
ery of a safe water supply to all consumers of said district, to 
prevent the impairing of the interests of the public or imperil- 
ling the public health, and to secure the sanitary protection of 
the said water supply. 

"Therefore, the Department of Public Health, in accord- 
ance with its authority under General Laws, Chapter 111, 
Sections 5 and 159, providing for the Department's general 
oversight and care of all inland waters, streams, ponds, lakes, 
and sources of water supply, and General Laws, Chapter 
111, Section 5G and 160, providing that the Department may 
order the provision and operation of such water treatment 
facilities as are in its opinion necessary to insure the delivery 
of a safe water supply to all consumers, and issue such other 
orders as in its opinion may be necessary to secure the sani- 
tary protection of all such water supplies, and in accordance 

98 P.D. 12 

with the application of General Laws, Chapter 111, Section 
8C and the other aforesaid sections to the Metropolitan 
Water District, through the application of General Laws, 
Chapter 92, Section 23. 

"The Department hereby orders the Metropolitan District 
Commission to make an upward adjustment of the fluoride 
content of the water supply available for domestic use in the 
cities and towns of the Metropolitan Water District to the op- 
timum level for sound dental health, and in carrying out said 
order, to install equipment and perform such other and inci- 
dental activities as may be necessary to maintain the fluoride 
content of said water supply at said optimum level." 

Your first question is: 

"(1) Does the Department of Public Health have the au- 
thority to order the Metropolitan District Commission to 
make an upward adjustment of the fluoride content of the 
water supply available for domestic use in the cities and 
towns of the Metropolitan Water District to the optimum 
level for sound dental health, either within its general powers 
to regulate water supplies or under some powers conferred on 
it by Chapter 548 of the Acts of 1968?" 
For "its general powers to regulate water supplies," the Department 
relies upon § 159 and 160 and §§ 5 and 5G of c. Ill of the General 
Laws. Section 159 charges the Department with the responsibility of 
overseeing the water supply in the Commonwealth. It provides: 

"The department shall have the general oversight and care 
of all inland waters and of all streams, ponds and under- 
ground waters used by any city, town, water supply or fire 
district or public institution or by any water or ice company 
or any person in the commonwealth as sources of ice or water 
supply and of all springs, streams and watercourses tributary 
thereto. It shall be provided with maps, plans and documents 
suitable for such purposes, and shall keep records of all its 
transactions relative thereto. It shall give notice to the attor- 
ney general of any violation of law relative to the pollution of 
water supplies and inland waters." 
Section 160 grants to the Department the power necessary "to prevent 

the pollution and to secure the sanitary protection" of the water supply 

used for domestic purposes. It provides: 

"The department may cause examinations of such waters 
to be made to ascertain their purity and fitness for domestic 
use, or the possibility of their impairing the interests of the 
public or of persons lawfully using them or of imperilling the 
public health. It may make rules and regulations and issue 
such orders as in its opinion may be necessary to prevent the 
pollution and to secure the sanitary protection of all such 

P.D. 12 99 

waters used as sources of water supply. It may delegate the 
granting and withholding of any permit required by such rules 
or regulations to state departments, boards and commissions 
and to selectmen in towns, and to boards of health, water 
boards and water commissioners in cities and towns, to be 
exercised by such selectmen, departments, boards and com- 
missions, subject to such recommendation and direction as 
shall be given from time to time by the department; and upon 
complaint of any person interested, the department shall in- 
vestigate the granting or withholding of any such permit, and 
make such orders relative thereto as it may deem necessary 
for the protection of the public health and to restrain the use 
of such waters to the extent as in its opinion such use will not 
tend to adversely affect the public health. Whoever violates 
any such orders, rules or regulations shall be punished by a 
fine of not more than five hundred dollars, to the use of the 
commonwealth, or by imprisonment for not more than one 
year, or both." 

However, this statute, as well as § 159, does not apply to water used 
for domestic purposes contained in "springs, streams, ponds or water- 
courses over which the metropolitan district commission has control." 
General Laws, c. 1 11, § 166. Chapter 92 of the General Laws, governing 
the powers and duties of the Commission, specifically provides for the 
"sanitary protection" of the water it supplies (§ 17) and the prevention 
of pollution of such water (§ 18). It also charges the Commission with 
the duty and confers upon it the authority to enforce the laws, rules, 
regulations and orders regulating the purity and fitness of such water (§§ 
20, 21 and 22). 

Because §§ 159 and 160 are expressly made inapplicable to water the 
Commission supplies to the metropolitan water district, the Department 
had no authority under them to issue the order to the Commission. 

Like section 159, section 5 is general. It imposes broad responsibilities 
upon the Department with respect to the "life, health, comfort and con- 
venience" of the citizens of the Commonwealth. It specifies with re- 
spect to water supplies that the Department: 

"shall have oversight of inland waters, including surface 
and subsurface waters, and sources of water supply, and shall 
control the pollution or contamination of any or all of the 
lakes, ponds, streams, tidal waters and flats within the com- 
monwealth and of the tributaries of such tidal waters and 

Section 5G provides: 

'The department may require by order a city, town or dis- 
trict maintaining a water supply to provide and operate such 
treatment facilities as are in its opinion necessary to insure 
the delivery of a safe water supply to all consumers. The su- 

100 P.D. 12 

preme judicial or the superior court shall have jurisdiction in 
equity to enforce any such order." 

This section was added in 1961 (St. 1961, c. 625) apparently to give 
the Department the necessary power to perform its duties of controlling 
"algae, reeds and other aquatic nuisances" imposed upon it earlier in 
1961 (St. 1961, c. 498, § 1). G. L. c. Ill, § 5F. This helps explain the 
use of the word "safe" rather than "pure," "fit," or "sanitary." See G. 
L. c. Ill, § 160. Nevertheless, the breadth of the language in § 5G 
makes it available to the Department for purposes other than the en- 
forcement of § 5F so long as the purpose is "the delivery of a safe water 
supply to all consumers." Whether the introduction of fluoride into a 
water supply system helps make such water "safe" is open to question. 
I do not attempt to answer that difficult question because, as shown 
below, fluoridation of water used for domestic purposes is not governed 
by the general provisions of §§ 5 and 5G; it is governed by the specific 
provisions of § 8C of c. Ill, added by St. 1968, c. 548. Section 8C pro- 

'The department in taking cognizance of the dental health 
of the people in the commonwealth shall recommend such 
methods as in its opinion are advisable to reduce or limit the 
prevalence of dental caries and other dental diseases and de- 
fects. If the commissioner determines that the fluoride con- 
tent of the public water supply for domestic use in any city, 
town or district is not at optimum level for sound dental 
health, he shall so notify the local board of health of his find- 
ings. Such board of health, after making such inquiry and 
other use of the consulting services of the department or 
elsewhere as it chooses, shall, if it considers doing so in the 
best interest of the inhabitants of the city, town or district 
within its jurisdiction, order the upward adjustment of the 
fluoride content of the water supply available for domestic 
use in that city, town or district. No such order shall be effec- 
tive until it has been published in a newspaper having a gen- 
eral circulation in such city or town. 

'The provisions of this section shall not apply if two or 
more cities or towns are supplied water from the same 
source, if such supply to each city or town cannot be treated 
independently and if the majority of the boards of health rep- 
resenting such cities and towns have voted not to accept such 
recommendation; provided, however, that any such city or 
town desiring to adjust upward the fluoride content of the 
water consumed within its own jurisdiction may comply with 
the order by the installation of proper equipment that will 
comply therewith if it does not interfere with the water supply 
of said other cities or towns. 

"In any city, town or district where the board of health has 
ordered the upward adjustment of the fluoride content of the 

P.D. 12 101 

water supply under the provisions of this section, upon peti- 
tion of ten per cent of the registered voters of said city, town 
or districts filed in the office of the city or town clerk, as the 
case may be, within ninety days of the publication of such 
order, the following question shall be placed upon the official 
ballot to be used at the next regular city election or for the 
election of town officers at the next annual town meeting: — 
'Shall the fluoridation of the public water supply for domestic 
use in (this city) (this town) be continued?', or in such district 
the following question shall be placed before the next annual 
meeting of the inhabitants of the district: — 'Shall the fluori- 
dation of the public water supply for domestic use in this dis- 
trict be continued?' If the majority of votes in answer to said 
question is in the negative the fluoridation of the water supply 
of such city, town or district shall be discontinued." 
Section 8C details the procedure for fluoridating public water sup- 
plies. In contrast to the power conferred by § 5G upon the Department 
to "order a city, town or district maintaining a water supply to provide 
and operate . . . treatment facilities," the Department (through its 
Commissioner) is limited to recommending methods to reduce or limit 
dental disease and to notifying local boards of health when it finds the 
fluoride content of the public water supply not to be at an optimum level 
for sound dental health. See Op. Att'y Gen. (1941) p. 37. Authority to 
order the upward adjustment of the fluoride content of the public water 
supply of the city, town or district so notified is given only to local 
boards of health. Furthermore, unlike § 5G, the voters of the city, town, 
or district ordered to fluoridate are given the power to compel such city, 
town or district to discontinue fluoridation. By providing a specific pro- 
cedure in § 8C for fluoridation different from the general procedure in § 
5G for insuring "the delivery of a safe water supply to all consumers," 
the Legislature manifested its intent to have § 8C govern the whole sub- 
ject of fluoridation. Therefore, even if the general provisions of §§ 5 and 
5G were broad enough to cover fluoridation, the provisions of § 8C cov- 
ering that specific subject must control. Maiden v. Flynn, 318 Mass. 

For the same reason, the broad provisions of §§ 159 and 160, even if 
applicable to water supplied by the Commission for domestic use, would 
also have to give way to the specific provisions in § 8C governing fluori- 

It is true that § 8C, enacted upon recommendation of a special legisla- 
tive commission which looked into the fluoridation of public water sup- 
plies as a means of reducing tooth decay (House Doc. No. 3902), con- 
fers upon local and state health officials more authority to effectuate the 
fluoridation of public water supplies than the statutes it replaced. G. L. 
c. 40, §§ 41B and 41C (repealed by St. 1968, c. 548, § 2). While the pred- 
ecessor statutes left the matter of fluoridation entirely in the hands of 
local authorities and the voters, § 8C at least authorizes the Department 

102 P.D. 12 

to advise local boards of health that the water supply does not have suf- 
ficient fluoride content for sound dental health and to recommend fluori- 
dation. Under the repealed statutes, no city, town or district could 
fluoridate without first ascertaining "the will of the voters of such city, 
town, or district . . ." G. L. c. 40, § 41B. Under § 8C, however, local 
boards of health, upon the recommendation of the Department, are em- 
powered to order the immediate fluoridation of the public water supply. 
Such fluoridation, under present law, is to continue unless the voters of 
the affected city, town or district vote that fluoridation be discontinued. 
Unlike the earlier law, § 8C sets a time limit upon the filing of a petition 
by registered voters to have the question of fluoridation placed on the 
ballot (ninety days from publication of the order of the board of health) 
and increases from five (under the predecessor statutes) to ten the per- 
centage of registered voters needed to petition to have the question of 
fluoridation placed on the ballot. Any city or town supplied from the 
same source is allowed under § 8C, subject to certain conditions, to 
fluoridate even though a majority of the boards of health of the cities and 
towns so supplied vote not to fluoridate. The prior statutes made no 
such provision. 

However far-reaching these changes in the law may be with respect to 
making fluoridation of public water supplies less cumbersome and giving 
to local and state health officials more authority to effectuate fluorida- 
tion, they fall short of giving the Department the power to issue orders 
to any city, town or district 1 to fluoridate its public water supply. The 
Legislature has left the ultimate decision as to whether to fluoridate in 
the hands of each city, town and district. 

I answer your first question, therefore, in the negative. 

Your second and third questions are: 

"(2) Does the Department of Public Health have the au- 
thority to order the Metropolitan District Commission to in- 
stall equipment and perform such other and incidental ac- 
tivities as may be necessary to maintain the fluoride content 
of said water supply at said optimum level and thereby, in es- 
sence, order the Commission to expend such funds as may be 
required for such installation and incidental activities? 

"(3) Does the Metropolitan District Commission have au- 
thority to expend funds simply upon authority of the order of 
the Department of Public Health?" 

In view of what I have said in response to your first question, I also 
answer your second and third questions in the negative. 
Your fourth question is: 

"(4) Does the Metropolitan District Commission, without 
legislation and under its general authority to provide pure 

' ( onsequently, even if the metropolitan water district were included in the word "district." as used in § 8C, the De- 
partment, nevertheless, is powerless to order the ( ommission to fluoridate the water supply for the district. As you will 
see. I conclude in answer to your fourth question that the metropolitan water district is a "district" as that word is used 
m | M 

P.D. 12 * 103 

water, have the authority to make an upward adjustment of 
the fluoride content of the water supply available for domes- 
tic use in the cities and towns of the Metropolitan Water Dis- 
trict to the optimum level for sound dental health?" 
The Commission has the responsibility of providing to member cities 
and towns in the metropolitan water district "a sufficient supply of pure 
water" and of securing and protecting "the purity of said water ..." 
G. L. c. 92, § 10(1). It has the general authority necessary to discharge 
these responsibilities. G. L. c. 92, §§ 10-32, 78, 82 and 102. However, 
nowhere in c. 92 of the General Laws, defining the powers and duties of 
the Commission, nor elsewhere in the General Laws, is there express 
provision for fluoridation of the metropolitan water district by the 
Commission. It is true that the Commission has authority to fluoridate 
the water it supplies to the metropolitan water district under its broad 
powers over the metropolitan water supply system. G. L. c. 92, §§ 10(1) 
and 15. See Op. Att'y Gen. (1953) p. 33. But the general provisions in 
Chapter 92 granting such authority are subject to the specific provisions 
governing fluoridation set forth in § 8C of c. 111. Maiden v. Flynn, 
supra, 318 Mass. 276. It is to the provisions of that section that I now 

While it is true that § 8C does not expressly refer to the metropolitan 
water district, it is my opinion that the metropolitan water district is a 
"district" for the purposes of § 8C. The word "district" as used in that 
section is not used as a word of art but rather is used to describe all 
water districts, including local water districts (see G. L. c. 4, § 7, cl. 36) 
and the larger metropolitan water district (see G. L. c. 92, § 10(1). Ac- 
cordingly, the provisions of § 8C which apply to "districts" must apply 
to the metropolitan water district in so far as they are applicable. I am 
not persuaded that the fact that the metropolitan water district is sui 
generis and has many characteristics in relation to its organization, 
financing and management which are different from local water supply 
districts mandates a different conclusion. On the contrary, I find it in- 
conceivable that the Legislature intended to overlook the metropolitan 
water district when it enacted § 8C; the more reasonable conclusion is 
that the Legislature considered it had covered the metropolitan water 
district through its use of the word "district." 

The language of the second paragraph of § 8C reinforces the conclu- 
sion which I have reached. That paragraph provides that the provisions 
of the section do not apply to the water supply of two or more towns 
which are supplied from a common source "if the majority of the boards 
of health representing such cities and towns have voted not to accept 
such recommendation [of the Department of Public Health]." Implicit 
in that statement is a recognition by the Legislature that, with respect to 
a common water supply for two or more towns, if a majority of the 
boards of health representing such cities and towns have voted an "up- 
ward adjustment of the fluoride content of the water supply," that up- 
ward adjustment can be made for the entire water supply. 

104 P.D. 12 

I therefore conclude that the metropolitan water district is a "district" 
as that word is used in § 8C, and that the Commission has authority 
under the provisions of § 8C relating to "districts" to fluoridate the met- 
ropolitan water district. Accordingly, I answer your fourth question in 
the affirmative. 

Very truly yours, 

Attorney General 

Number 26 March 10, 1972 

Honorable Henry W. Kolbe, M.D. 

Commissioner of Public Health i 
600 Washington Street 
Boston, Massachusetts 02111 

Dear Sir: 

This is in reply to your predecessor's request for my opinion regarding 
the authority and the obligation of the Metropolitan District Commis- 
sion (Commission) to fluoridate the public water supply available for 
domestic use in the metropolitan water district. 

Under § 8C of c. Ill of the General Laws, your predecessor advised 
me that he, as commissioner of public health, had found that the fluoride 
content of the public water supply available for domestic use in the 
thirty-two cities and towns comprising the metropolitan water district 
was not at optimum level for sound dental health, and had so notified the 
boards of health of all such cities and towns. In turn, the boards of 
health of twenty-seven of such cities and towns have ordered fluorida- 
tion of their water supplies. The period within which petitions could 
have been brought under § 8C to stop fluoridation has expired in a ma- 
jority of the thirty-two cities and towns. 
The following two questions were posed: 

"(1) Does the action of the Boards of Health of the 27 
cities and towns of the Metropolitan Water District give the 
M.D.C. the authority to fluoridate the water supply of said 

"(2) Does the action of the Boards of Health of the 27 
cities and towns of the Metropolitan Water District require 
the M.D.C. to fluoridate the water supply of said District?" 
I answer both questions in the affirmative for the reasons set forth in 
my opinion issued this date to Commissioner John W. Sears of the Met- 
ropolitan District Commission, particularly the reasons given in answer 
to the Commissioner's fourth question. 

Very truly yours, 

Attorney General 

P.D. 12 105 

Number 27 March 24, 1972 

Honorable Mary B. Newman, Secretary 
Executive Office of Manpower Affairs 
18 Tremont Street 
Boston, Massachusetts 02108 

Dear Secretary Newman: 

You have requested my opinion whether employees of the Lowell 
Technological Institute Research Foundation must be covered as of 
January 1, 1972 by provisions of St. 1971, c. 940 which relate to unem- 
ployment compensation insurance, and, if so, whether the employees 
are to be considered state employees and therefore required to be co- 
vered on a reimbursing basis under section 4 of Chapter 940 or whether 
said employees are to be considered employees of a non-profit organiza- 
tion as that term is defined in 26 U.S. C. § 501(c) (3) and thus may be co- 
vered on a payroll tax basis. See St. 1971, c. 940, § 13. For the reasons 
hereinafter stated, it is my opinion that the Foundation's employees are 
covered by the former provisions. 

The threshhold issue is whether Lowell Technological Institute Re- 
search Foundation is part of an institution of higher education within the 
meaning of St. 1971, c. 940, § 4A which provides in part: 

" 'Institution of higher education, ' for the purposes of this 
section, section four B and section twenty-eight A, means an 
educational institution which admits as regular students only 
individuals having a certificate of graduation from a high 
school, or the recognized equivalent of such a certificate, and 
is legally authorized in the commonwealth to provide a pro- 
gram of education beyond high school, and provides an edu- 
cational program for which it awards a bachelor's or higher 
degree, or provides a program which is acceptable for full 
credit toward such a degree, a program of post-graduate or 
post-doctoral studies, or a program of training to prepare stu- 
dents for gainful employment in a recognized occupation; and 
is a public or other non-profit institution. Notwithstanding 
any of the foregoing provisions, all colleges and universities 
in the commonwealth are institutions of higher education for 
purposes of this section." 

Section 1 of c. 75A of the General Laws which establishes and gov- 
erns the Lowell Technological Institute provides: 

'The Lowell Technological Institute of Massachusetts, 
hereinafter referred to as the institute, shall provide educa- 
tional programs, research, extension and continuing educa- 
tion services in the technological and engineering and physi- 
cal science fields . . . 

'The institute shall be a state institution within the de- 
partment of education ..." 

106 P.D. 12 

The Institute itself thus clearly comes within the ambit of Chapter 940's 
definition of "institution of higher education." As far as the status of the 
Research Foundation is concerned, the Institute is authorized to estab- 
lish and manage it by section 23 of Chapter 75 A "for the purpose of 
promoting research at the institute ..." The Foundation is, therefore, 
both by statutory definition and by the very nature of the interdepen- 
dence of research and learning part of an institution of higher education. 
As such, its employees must be covered for purposes of unemployment 

Whether they are to be covered on a reimbursing basis or on the 
payroll tax schedule provided at the present time for private industry 
depends on whether or not they are to be considered employees of the 
Commonwealth since section 13 of Chapter 940 allows non-profit or- 
ganizations to elect to cover their employees in this latter manner. 
Coverage on the reimbursing basis is necessary, as you indicate, only 
for employees of the Commonwealth. 

To date employees of the Research Foundation have not been consid- 
ered to be state employees in all respects. Section 23 of Chapter 75 A of 
the General Laws gives the Institute the power to manage the Research 
Foundation "under such regulations as the board of trustees may from 
time to time prescribe." Matthew J. Lydon, former president of the In- 
stitute, in a letter to my predecessor dated June 17, 1968, outlined the 
procedure followed pursuant to this power: 

"The Trustees of the Institute manage the Research Foundation 
through a Board of Directors of the Foundation, to which the 
Trustees have delegated all operating responsibilities . . . The 
Board of Directors has, since 1950, developed the Foundation's 
employment policies and has determined whether or not it could 
take advantage of state programs for employee benefits item-by- 
item based on their applicability to Foundation personnel. Most 
were determined not to be applicable to Foundation personnel. 
Among other things, the Board of Directors has found it necessary 
to provide a program of health and life insurance for Foundation 
personnel as well as a separately supported retirement fund to 
which both the employees and the Foundation contribute." 

Despite this past practice, it appears that employees of the Research 
Foundation are in fact employees of the Commonwealth and should be 
treated as such. 

Section 12 of Chapter 75 A of the General Laws provides: 

"All officers and employees, professional and non- 
professional, of the institute shall continue to be employees of 
the commonwealth irrespective of the source of funds from 
which their salaries or wages are paid. They shall have the 
same privileges and benefits of other employees of the com- 
monwealth such as retirement benefits, group insurance, in- 
dustrial accident coverage, and other coverage enjoyed by all 
employees of the commonwealth." 

P.D. 12 107 

The question thus becomes: Are the Research Foundation's em- 
ployees also employees of the Institute? If they are, then section 12 dic- 
tates that they are state employees even if the Research Foundation is 
privately funded. 

As has been noted, G. L. c. 75A, § 23 gives the Institute managerial 
control of the Foundation. That section further specifies in part: 

"The Lowell Technological Institute of Massachusetts Re- 
search Foundation may ... (6) execute contracts with em- 
ployees or others for the purpose of carrying out the provi- 
sions hereof and permitting such employees or others to share 
in the net proceeds of such contracts as the board of trustees 
shall determine." 
It logically follows that such employment contracts are subject to the 
Institute's broad managerial and regulatory powers. 

I note that the State Auditor has, in his reports, commented on the 
status of employees of the foundation and has stated: 

"The Institute approves increases and decreases in salary 
and wages as well as all changes in personnel. It further ap- 
pears that the Board of Trustees carries out these duties 
through the Board of Directors as authorized by Section 2 of 

Article VIII of the Trustee-approved Foundation Bylaws . . . 


"Attention is directed to the fact that the signature of the 
President of the Institute, signing on behalf of the Board of 
Trustees, is required by the Comptroller of the Common- 
wealth on all payment schedules, advance requisitions and 
monthly financial reports." Report of the Examination of the 
account of the Lowell Technological Institute of Massachu- 
setts Research Foundation from Sept. 30, 1969 to August 30, 
1970, p. 11. 
In another context, I have previously concluded that employees of the 
Foundation are state employees and the Foundation is a state agency 
within the meaning of G. L. c. 268A, § l(p), the Conflict of Interest law. 
See Conflicts Opinions Nos. 548, 549 and 550. (December 18, 1970.) I 
reach the same conclusion under the statutory provisions involved in the 
instant situation, although I wish to emphasize that my conclusion with 
respect to the status of the employees under the statutory provisions in- 
volved here is not necessarily controlling as to other situations which 
may arise. Resolution of those questions must, of course, await a full set 
of facts. See III Op. Atty. Gen. 425. 

Measured by the varying provisions of St. 1971, c. 940, § 4 and § 13, 
the Foundation more clearly resembles an institution of higher education 
as defined in § 4 rather than a "non-profit organization" as defined in 
section 13. While the provisions of the General Laws to which I have re- 
ferred may indeed give special consideration to the Foundation, making 
it distinct and sui generis among state agencies and instrumentalities, 

108 P.D. 12 

nevertheless, the Foundation has a sufficient nexus with the Institute so 
as to bring it under the umbrella of the Institute's status as an institution 
of higher education within the meaning of Chapter 940. 

In conclusion, then, it is my opinion that the employees of the Found- 
ation must be covered on a reimbursing basis pursuant to St. 1971, c. 
940, § 4. 

Very truly yours, 

Attorney General 

Number 28 April 11, 1972 

Honorable Alan A. Altschuler 
Secretary of Transportation 

and Construction 
18 Tremont Street 
Boston, Massachusetts 02108 

Dear Secretary Altschuler: 

I have been advised that the Commonwealth, acting through your of- 
fice, has submitted an application to the Urban Mass Transportation 
Administration of the United States Government for an advance land 
acquisition loan of $19,500,000 under the Urban Mass Transportation 
Act of 1964, 49 U.S.C. § 1601, et seq., to assist in advance acquisition 
of approximately 145 miles of railroad rights-of-way of the Penn Central 
Transportation Company (now in reorganization under the supervision 
of the United States District Court for the Eastern District of Pennsyl- 
vania). The rights-of-way so acquired are to be used immediately and in 
the future for urban mass transportation purposes, and the application 
has been submitted in the name of the Commonwealth with the concurr- 
ence and assistance of the Massachusetts Bay Transportation Authority. 

In connection with the application, my opinion is required with re- 
spect to the authority of the Commonwealth to apply for, receive and 
expend funds received from the United States Government for the pur- 
poses stated in the application. Accordingly, I have examined the appli- 
cation, the supporting documentation, as well as the petition of the Trus- 
tees of the Penn Central Transportation Company to sell land and 
facilities in the Commonwealth, which petition is now pending in the 
Reorganization Court. In addition, a copy of the appraisal of Robert E. 
McGovern has been furnished me. 

For the reasons stated hereinafter, I conclude that the Commonwealth 
possesses the requisite authority. I reach that conclusion from a review 
of the pertinent statutory provisions. General Laws, Chapter 161 A, sec- 
tion 29, pertaining to the Massachusetts Bay Transportation Authority, 

'The authority is authorized and directed from time to time 
to take all necessary action to secure any federal assistance 

P.D. 12 109 

which is or may become available to the commonwealth or 
any of its subdivisions for any of the purposes of this chapter. 
If any federal law, administrative regulation or practice re- 
quires any action relating to such federal assistance to be 
taken by any department or instrumentality of the common- 
wealth other than the authority, such other department or in- 
strumentality is authorized and directed to take all such ac- 
tion, including without limitation filing applications for assis- 
tance, supervising the expenditure of federal grants or loans 
and making any determinations and certifications necessary 
or appropriate to the foregoing, and the authority is au- 
thorized and directed to take all action necessary to permit 
such other department or instrumentality to comply with all 
federal requirements. It is the intent of this section that the 
provisions of any federal law, administrative regulation or 
practice governing federal assistance for the purposes of this 
chapter shall, to the extent necessary to enable the common- 
wealth or its subdivisions to receive such assistance and not 
constitutionally prohibited, override any inconsistent provi- 
sions of this chapter." 
General Laws, Chapter 6A, section 6 provides, in pertinent part: 

"The secretary [of transportation and construction] may, 
subject to the approval of the commissioner of administra- 
tion, apply for and accept on behalf of the commonwealth any 
funds, including grants, bequests, gifts or contributions, from 
any person. Such funds shall be deposited in a separate ac- 
count with the state treasurer and received by him on behalf 
of the commonwealth ..." 

In view of the Secretary's power to apply for funds found in section 6 
of Chapter 6 A and the proviso in section 29 of Chapter 161 A which 
permits and authorizes a department or instrumentality of the state other 
than the Massachusetts Bay Transportation Authority to take necessary 
action to obtain federal assistance, I conclude that you, as Secretary of 
Transportation and Construction, possess sufficient statutory authority 
to execute the advance land acquisition loan application. 

I have also reviewed the pertinent constitutional and statutory provi- 
sions, and I find nothing which would prohibit or affect the 
Commonwealth's repayment of the loan if it is approved. 

Very truly yours, 

Attorney General 

10 P.D. 12 

Number 29 April 14, 1972 

Honorable John F. Kehoe, Jr. 

Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Kehoe: 

You have requested my opinion with respect to the validity of certain 
provisions of the Building Regulations for Schoolhouses (the Regula- 
tions) promulgated by the Board of Schoolhouse Structural Standards 
(the Board). You ask specifically whether Sections 107.11, 114.5, 109.3, 
109.32, and 109.33 of the Regulations are invalid because of conflict with 
G. L. c. 143, in so far as those sections of the Regulations provide that 
the Commissioner of Public Safety (the Commissioner) may delegate the 
powers of inspection and enforcement under the Regulations to an in- 
spections officer or board of a city or town, and that the Board may re- 
view any claim that the true intent of the Regulations has in a specific 
case been incorrectly interpreted. For the reasons set out below, I an- 
swer your question in the negative. 

The Board was originally established for a period of three years by St. 
1955, c. 675, in order "[t]o promote the construction of schoolhouses in 
the commonwealth by the establishment of reasonable structural stan- 
dards." Section 2 of the statute provided that the regulations issued 
under G. L. c. 143, § 54, for the uniform enforcement of the laws regard- 
ing public buildings (c. 143, §§ 15-52) "shall, in so far as they pertain to 
schoolhouses, be issued for a period of three years by the board of 
schoolhouse structural standards, any provisions of said section to the 
contrary notwithstanding." The existence of the Board and the period 
during which the Board is to issue the regulations under G. L. c. 143, § 
54 has from time to time been extended by the Legislature, 1 most re- 
cently in St. 1970, c. 788, §§ , 2, which extends the period until 
November 13, 1973. 2 In St. 1960, c. 596, § 1, the Legislature further de- 
fined the Board's duties to include the promulgation of "rules and regu- 
lations relating to structural safety and prevention of fire in connection 
with the construction, reconstruction, and alteration or remodeling of all 
public and private schoolhouses and relating to the standards of materi- 
als to be used therein ..." 

1 St. 1^58. c. 361; 1951. c. 457, §§ I, 2; 1964. c. 546. §§ I. 2; 1967. c. 300. §§ 1. 2; 1970, c. 788. §§ 1, 2. 

- When the term of the Board's existence expires, the regulations will be made by the Commissioner of Public Safety 
under (i. L. c. 143. § 15A. St. I960, c. 596, § 3; 1970, c. 788, § 3. 

P.D. 12 111 

Sections 107.11 and 114.5 of the Regulations, set out in full in the 
margin, 3 provide in essence that the regulations issued by the Board 
under G. L. c. 143, § 54, pertaining to schoolhouses, may, upon request 
to the Commissioner of Public Safety, be enforced by the building in- 
spectors of the various cities and towns, rather than by the inspectors of 
the Division of Inspection of the Department of Public Safety. Sections 
109.3, 109.32, and 109.33 of the Regulations 4 provide in essence that any 
person who is aggrieved by the decision of a local inspector may appeal 
to the Board for a determination whether the Regulations have been in- 
terpreted according to their true intent. 

You ask whether these sections conflict with the procedures set out in 
G. L. c. 143 for the inspection of schoolhouses. You refer specifically to 
§ 3 of c. 143, which provides that each city and town may regulate the 
inspection, materials, constructions, alteration, and so forth, "of build- 
ings and other structures within its limits, except the inspection, materi- 
als, construction, alteration and repair of schoolhouses ..." I see no 
conflict between § 3 and any of the Regulations. It is the Board that is 
regulating the inspection, materials, and construction of schoolhouses — 
none of the Regulations delegates the duty of making regulations to the 
cities or towns. The Board has chosen only to delegate the duties of in- 
spection and enforcement to local inspectors. 

You also refer to § 33 of c. 143, which provides that local building in- 
spectors shall enforce the various requirements of c. 143 "relative to 
buildings other than churches, theatres . . . [and] schoolhouses ..." 
Again, none of the Regulations is squarely in conflict with this statute. 
The local inspectors are not given the power of enforcement solely by 
virtue of their own official positions. Section 107.11 authorizes the 
Commissioner to make them his representatives. In this respect Section 
107.11 resembles G. L. c. 143, § 3A, which provides that the local build- 
ing inspectors shall be the authorized representatives of the Commis- 
sioner for the enforcement of certain regulations adopted by the board of 

:t 107. 1 1 . Representatives of Commissioner of Public Safety. — The Commissioner of Public Safety may, upon request, 
delegate any or all of the duties or powers of the Department of Public Safety building official under Section 108 of this 
code to an officer or board of a city, town or district or inspector of the division of inspection of a city who otherwise is 
or may be authorized as a representative of the Commissioner of Public Safety under Section 3A of chapter 143 of the 
General Laws. For the purpose of enforcement of the provisions of this code such officer, board or inspector shall be 
known as a Department of Public Safety building official. 

1 14.5 Approved Plans. — The Supervisor of Plans shall stamp or endorse in writing all sets (not to exceed four) of cor- 
rected plans "Approved", and one set of such submitted approved plans shall be retained by him to be forwarded to the 
District Inspector and a second set shall be kept at the building site, open to inspection of the Authorized Inspector of 
[sic] his representative at all reasonable times, and all other sets returned to the applicant. The applicant shall deliver one 
of these sets together with a set of specifications to the local building inspector forthwith. 

4 109.3. Interpretation of Rules. — For the purpose of providing uniform interpretation and application of the provisions 
of these regulations, the board in an official meeting may review upon written application any claim that the true intent of 
the regulations have [sic] been incorrectly interpreted, are in need of interpretation, as expressed do not fully apply, or 
an equally effective method of attaining the required function is available. 

109.32. Review Procedure. — The board shall meet upon notice of the chairman within thirty (30) days of the filing of 
application for review of a claim. 

109.33. Findings of the Board. — The board by majority vote shall furnish a written interpretation of the intent of the 
regulations as they apply generally and specifically to the claim in the request at hand. These interpretations shall be- 
come part of the records of the meeting and shall be considered at the next public hearing if modifications to the regula- 
tions are required. 

112 P.D. 12 

standards in the Department of Public Safety under §§ 3B, 3D, 3G and 
21B of c. 143. 

As you intimate in your letter, it is clearly contemplated by c. 143 of 
the General Laws that the inspection of schoolhouses, churches and 
other public buildings will be carried out by inspectors of the Division of 
Inspection in the Department of Public Safety. See G. L. c. 143, §§ 1 
(defining "Inspector"), 15 and 33. However, these provisions of c. 143 
are premised upon the terms of §§ 15A and 54 of that chapter, wherein it 
is the Commissioner who promulgates rules and regulations regarding 
the construction and inspection of schoolhouses and the uniform en- 
forcement of §§ 15 through 52 of c. 143. For the time being, § 15A is not 
in force, and the regulations issued under § 54 which pertain to 
schoolhouses are to be issued by the Board. Consequently, the more 
general provisions of c. 143 must yield to the narrower and more specific 
provisions of the special acts which established the Board and define its 
duties and powers. See Clancy vs. Wallace, 288 Mass. 557, 564; Op. 
Att'y Gen'l., 1963-64, pp. 55, 56 (July 10, 1963). In my opinion, the de- 
cision whether to authorize the Commissioner to delegate the powers 
and duties of inspection under the Regulations is within the power of the 
Board under G. L. c. 143, § 54 and St. 1955, c. 675, § 2, to "issue regu- 
lations necessary for . . . [the] uniform enforcement" of §§ 15 to 52 of c. 
143, in so far as they pertain to schoolhouses. The choice of the Board 
in Sections 109.3, 109.32 and 109.33 to reserve to itself the ultimate de- 
termination of the meaning of the Regulations is clearly within the 
Board's statutory authority. "Where a grant of power is expressly con- 
ferred by statute upon an administrative officer or board of where a 
specific duty is imposed upon them, they in the absence of some statu- 
tory limitation have authority to employ all ordinary means reasonably 
necessary for the full exercise of the power and for the faithful perform- 
ance of the duty." Bureau of Old Age Assistance of Natick v. 
Commissioner of Public Welfare, 326 Mass. 121, 124. 

Very truly yours, 

Attorney General 

Number 30 April 14, 1972 

Mrs. Glendora M. Putnam, Chairman 
Massachusetts Commission Against 

120 Tremont Street 
Boston, Massachusetts 02108 

Dear Mrs. Putnam: 

You have requested my opinion concerning the continued validity of 
various residency requirements for public housing, which you state have 
the result of excluding from suburban areas members of minority groups 

P.D. 12 113 

who reside for the most part in the cities of the Commonwealth. For the 
reasons hereinafter stated, I conclude that such requirements are uncon- 

My opinion is based on the decision of the United States Court of 
Appeals for the First Circuit in Cole v. Housing Authority of City of 
Newport, 435 F.2d 807 (C.A. 1, 1970). This decision which is now the 
law in this Commonwealth affirmed a district court's finding that a two- 
year residency requirement imposed on applicants for admission to 
federally-aided low rent public housing projects was violative of the 
Equal Protection Clause of the Fourteenth Amendment to the Constitu- 
tion of the United States. Relying on the Supreme Court's determination 
that the right to travel is a fundamental personal right, the Court of Ap- 
peals stated: 

'The goal of preventing an influx of outsiders is constitu- 
tionally impermissible. The residency requirement is not ra- 
tionally related to the goal of planning. The objective of 
achieving political support by discriminatory means or by 
nourishing an illusion that means discriminate is not one 
which the Constitution recognizes. Nor do we believe the 
goal of promoting provincial prejudices toward long-time res- 
idents is cognizable under a Constitution which was written 
partly for the purpose of eradicating such provincialism. Cer- 
tainly none of these interests counterbalances the fundamen- 
tal individual right involved." 435 F.2d at 813. 

You are thus justified in considering the residency requirements of 
any of the Commonwealth's public housing units as unconstitutionally 
discriminatory when acting upon complaints pursuant to your respon- 
sibilities under Chapter 15 IB of the General Laws. 

Very truly yours, 


Attorney General 

Number 31 April 19, 1972 

Honorable Mary B. Newman, Secretary 
Executive Office of Manpower Affairs 
18 Tremont Street 
Boston, Massachusetts 02108 

Dear Secretary Newman: 

You have requested my opinion with respect to the status of persons 
employed under the Emergency Employment Act of 1971, Public Law 
92-54. 1 The Act provides, during times of high unemployment, programs 
of public service employment for unemployed persons to assist states 

1 42 U.S.C.A. §§ 4871 el seq. 

114 P.D. 12 

and local communities in providing needed public services. 

St. 1971, c. 730, provides: 

"For the purpose of implementing the Federal Emergency 
Employment Act of 1971, any governmental unit, as defined 
in section four A of chapter forty of the General Laws, may 
enter into an agreement with one or more other governmental 
units, as so defined, to perform jointly or for such other unit 
or units any service, activity or undertaking, including any 
service, activity or undertaking authorized under section 
fifty-three A of chapter forty-four of the General Laws, 
which each contracting unit is authorized by law to perform, 
if such agreement is authorized by each party thereto, in a 
city by the mayor, in a town by the selectmen and in a district 
by the prudential committee, if any, and otherwise by the 
commissioners. Any such agreement may be terminated by 
any party thereto at the end of any fiscal year if such termina- 
tion is authorized by the terminating unit in the manner 
aforesaid; provided, that notice of such termination is given 
to each other party to the agreement at least sixty days prior 
to the date of termination. 

"Any such agreement shall be subject to the provisions of 
the second paragraph of said section four A of said chapter 
forty to the extent not inconsistent with this act." (footnote 

You have forwarded to me information relative to the hiring proce- 
dures utilized to employ persons under the Emergency Employment Act 
(E.E.A.) This information reveals that each community in any of the 
consortia is responsible for assessing its own public service needs and 
determining what positions it will apply for under the E.E.A. 2 Once this 
determination is made, the individual community completes the federal 
application form and prepares job descriptions for the requested posi- 
tions, which descriptions define the responsibilities involved and the 
qualifications required for the position. Each job description also con- 
tains the name of the individual in the community who is responsible for 
the interviewing and selection process. These materials are then for- 
warded to the city or town which has been designated as the "sub- 
agent" for the consortium. The sub-agent then forwards the materials to 
your office. You have informed me that the sub-agent is not authorized 
to refuse any applications submitted to it by a consortium member, but 
that that prerogative lies with your office. Once your office approves the 
applications, notification is sent to the sub-agent which, in turn, notifies 
the individual community. 

After approving the application, your office lists the availability of 
these positions with the Division of Employment Security Office in the 
area of the community. D.E.S. counsellors then screen applications for 

f m purpotei Of this opinion. I am assuming thai the word consortium, (pi. consortia) as used in your letter and the ad- 
ditional information, relers to .1 group of two or more governmental units which have entered into agreements pursuant to 
St 1971. c. 730. 

P.D. 12 115 

general qualifications in accordance with the job descriptions. After ini- 
tial screening, the applicants are referred to the individual named on the 
job description for interviews. It is this individual who makes the ulti- 
mate decision as to which applicants will be employed to fill the ap- 
proved positions. 3 

Once employed, the individual works under the direction and control 
of the city or town. However, his salary is paid directly by the sub-agent 
with federal funds forwarded to the sub-agent by your office. 

Section 12(a) of the Emergency Employment Act provides in part: 
'The Secretary shall not provide financial assistance for 
any program or activity under this act unless he determines, 
in accordance with such regulations as he shall prescribe, that 

"(4) all persons employed in public service jobs under this 
Act will be assured of workmen's compensation, health in- 
surance, unemployment insurance, and other benefits at the 
same levels and to the same extent as other employees of the 
employer and to working conditions and promotional oppor- 
tunities neither more nor less favorable than such other em- 
ployees enjoy ..." 

You state that the cost to the employer of these benefits, including the 
premium charges for insurance coverage, can be paid from the federal 
grant funds. You further state that in the case of workmen's compensa- 
tion, employees of the Commonwealth and of many of the participating 
cities and towns are covered by self-insurance plans for which no pre- 
mium charges can be developed, and that in order to relieve the Com- 
monwealth and these cities and towns of this financial exposure, your 
office is attempting to provide workmen's compensation coverage 
through private insurance carriers. Your letter also informed me that 
some of the consortia of cities and towns have already received binders 
of coverage from private carriers for all of the employees in each of the 
consortia on the basis that while the employees work under the direction 
of the individual cities and towns, their salary is paid directly by the 
consortia sub-agents. 

The question whether these employees are the employees of the con- 
sortium or of the city or town may become crucial with respect to a de- 
termination of responsibility in the event of an industrial accident. Ac- 
cordingly, you have asked whether a person employed under the 
Emergency Employment Act and working under the direction of a city 
or town, is an employee of the city or town or of the consortium. You 
further ask whether the employer's liability to an E.E.A. employee for 
an industrial accident can be distinguished from that employer's liability 
for other than E.E.A. employees, and can that distinguishable liability 
be assumed separately by a private carrier. You also ask the same ques- 
tion with respect to persons employed under the E.E.A. and working 
under the control of a state agency. 

:1 I am also informed that, where applicable, all the usual civil service procedures are followed. 

116 P.D. 12 

For the reasons discussed below, I conclude that persons employed 
under the E.E.A. are employees of the city or town and that the 
employer's liability to such employees may not be assumed separately 
from the coverage provided by the city or town for its non-E.E.A. em- 
ployees. The question of insurance coverage for E.E.A. employees at- 
tached to state agencies is dealt with separately. 

The principal indicia of an employer-employee relationship is the right 
to supervise and control the activities of the employee O'Hara's case, 
310 Mass. 223, 225. 

"One of the essential tests is whether the person who is 
performing services for another is under the control and 
supervision of the latter and is bound to obey his instructions, 
not only as to the result to be accomplished but also as to the 
means and methods that are to be utilized in the performance 
of the work. If he is subject to such control and supervision, 
then he is an employee of the person for whom he is perform- 
ing the services.' Griswold v. Director of the Division of Em- 
ployment Security, 315 Mass. 371, 372-373." 

Maniscalco v. Director of the Division of Employment 
Security, 327 Mass. 211. 
It is clear from the information forwarded to me by your office, that 
an individual employed through the E.E.A. is subject to the control and 
supervision of the city or town which hires him. The city or town not 
only has supervision and control, but also is the appointing authority and 
has the corresponding right to discharge the employee. The fact that the 
employee is paid by the sub-agent is not critical. It is clear that the sub- 
agent is merely a conduit between the city or town and your office. The 
fact that the employee may, while acting under the supervision and con- 
trol of one member of the consortium, perform services for the benefit of 
other members does not force the conclusion that he or she is the em- 
ployee of the consortium. General Laws, c. 40, § 4A contains wording 
similar to St. 1971, c. 730, and authorizes agreements between and 
among governmental units to perform jointly or for such other unit or 
units any service, activity or undertaking which each contracting unit is 
authorized by law to perform. The section further provides: 

'The equipment and employees of a governmental unit 
while engaged in performing any such service, activity or un- 
dertaking under such an agreement shall be deemed to be en- 
gaged in the service and employment of such unit, notwith- 
standing such service, activity or undertaking is being per- 
formed in or for another governmental unit or units." 
With respect to those persons employed through the E.E.A. and 
working under the supervision of a state agency, I conclude for the same 
reasons that such persons are employees of the Commonwealth. 

The question whether the employer's liability to an E.E.A. employee 
can be distinguished from its liability to a non-E.E.A. employee and as- 

P.D. 12 117 

sumed by a private carrier requires an analysis of the workmen's com- 
pensation statutes. Moreover, governmental units must be classified so 
as to distinguish between those which are "self insurers" and those 
which are not. 

It was not until St. 1913, c. 807 that the Workmen's Compensation 
Act was extended to include employees of the Commonwealth and its 
cities and towns. General Laws, c. 152, § 69 provides in part: 

'The commonwealth and any county, city, town or district 
having the. power of taxation which has accepted chapter 
eight hundred and seven of the acts of nineteen hundred and 
thirteen, and any town or district having the power of taxa- 
tion which accepts the provisions of this section . . . shall pay 
to laborers, workmen, mechanics, and nurses, employed by it 
who receive injuries arising out of and in the course of their 
employment, or, in case of death resulting from such injury, 
to the persons entitled thereto, the compensation provided by 
this chapter . . . The terms laborers, workmen and 
mechanics, as used in sections sixty-eight to seventy-five, in- 
clusive, shall include all employees of any such city or town, 
except members of a police or fire force, who are engaged in 
work being done under a contract with the state department 
of public works, and shall include other employees except 
members of a police or fire force, regardless of the nature of 
their work, of the commonwealth or any such county, city, 
town, ... to such extent as the commonwealth or such 
county, city, town . . . shall determine . . . 

"Any county, city, town or district which accepts this sec- 
tion may provide for payment of compensation of certain or 
all of its employees by insurance with an insurer, subject, 
however, to the provisions and limitations of this section. 
..." (Emphasis supplied.) 
The act has been construed broadly so as to include as many em- 
ployees as possible. Collins' s Case, 342 Mass. 389; Warren's Case, 326 
Mass. 718; Castagna's Case, 310 Mass. 325. It should be noted that 
while § 69 is applicable to the Commonwealth as well as its cities and 
towns, the portion of the section which authorizes contracts of insurance 
to provide workmen's compensation benefits does not include the 
Commonwealth. The Legislature, therefore, did not intend the Com- 
monwealth to provide the benefits through a private insurance carrier. 
This intent is further reflected in §§ 69A and 69B of said c. 152. 4 There 
is no specific grant of authority to the Commonwealth authorizing con- 
tracts with insurance carriers for workmen's compensation coverage. 
Consistent with this intent, the Commonwealth has been providing its 
employees with workmen's compensation benefits as a self-insurer 
rather than by contracting with a private carrier. 

4 Section 69A provides that "No compensation shall be paid by the commonwealth under this chapter without the previ- 
ous written consent of the attorney general or an order of the division ..." Section 69B provides that "Payments of 
compensation ... by the commonwealth under this chapter following the consent or order required by section sixty-nine 
A shall be made only upon vouchers bearing the certification of the supervisor of workmen's compensation agents ..." 

118 P.D. 12 

Moreover, your office has no specific authority under any statute or 
regulation to enter into contracts with insurance companies to provide 
workmen's compensation benefits for employees of the Commonwealth. 
Officers and agents of the Commonwealth have restricted rather than 
general authority. Op. Att'y. Gen., January 27, 1954, p. 48. For the 
foregoing reasons, I conclude that, absent special legislation, the Com- 
monwealth cannot contract with a private insurance carrier to provide 
workmen's compensation benefits for its E.E.A. employees. 

A city or town which elects to provide workmen's compensation ben- 
efits may do so by contracting with a private carrier (G. L. c. 152, § 69), 
or it may elect to become a self-insurer under the provisions of G. L. c. 
40, § 13A. In Stoltzs Case, 325 Mass. 692, it was held that a city or 
town which accepted the act and insured with an insurance company, 
was required to do so under a single policy of insurance and could not 
insure under multiple policies each one of which purported to cover a 
single department or function of the municipal government. The 
rationale of the decision was that the city or town, as a single political 
entity, accepted the workmen's compensation act by vote of its elector- 
ate and not by individual departments into which it is organized. Once it 
accepted the act, the city or town became obligated to insure all of its 
employees to the extent of its acceptance of the act. This obligation 
could not be limited by the terms of any policy. While the case is most 
often cited for the proposition that a city or town cannot insure some of 
its employees and not others in the same class, it is clear that the deci- 
sion also stands for the proposition that a city or town which elects to 
provide workmen's compensation benefits for its employees through in- 
surance coverage, must do so through one insurance policy. 

The Stoltz decision is also consistent with an opinion of one of my 
predecessors relative to whether a municipality could insure some of its 
employees and not others. 

In that opinion it was stated: 

tc The language of neither St. 1913, c. 807, nor St. 1911, c. 
751 [the original Workmen's Compensation Act], contains 
any suggestion that employees of a single employer may be 
divided into classes, one of which shall be protected in one 
manner and others in another. The original idea, upon the 
basis of which St. 1911, c. 751, was framed, was of one insur- 
ance company, in which all employers who came under the 
act should insure all their employees." Op. Att'y. Gen., May 
24, 1917, p. 73 at 76. 

The rationale against multiple policies would appear to be to prevent 
confusion and delay in the event of an industrial accident. One of the 
principles upon which workmen's compensation is founded is that the 
employee in return for giving up his common law right of action against 
his employer is given a speedy and effective means of compensation for 
any injury suffered in the course of his employment. The speed and ef- 

P.D. 12 119 

fectiveness of workmen's compensation could be greatly diminished it 
multiple contracts were in effect for a single employer. Confusion might 
exist as to which policy is applicable; whether the employee is covered 
by one or the other, neither or both. This would tend to frustrate the ef- 
fectiveness of workmen's compensation. 

For the foregoing reasons, I conclude that cities and towns which are 
providing workmen's compensation benefits to its employees under an 
insurance policy, must provide its E.E.A. employees who come under 
the act, workmen's compensation benefits under the same policy and 
not under a separate contract. 

Finally, I consider those cities and towns which provide workmen's 
compensation benefits as self-insurers under the provisions of G.L. c. 
40, § 13 A, which provides in part: 

"Any city or town which has accepted chapter eight 
hundred and seven of the acts of nineteen hundred and thir- 
teen and which accepts this section, . . . may appropriate an 
amount ... to establish and maintain an insurance fund to 
pay workmen's compensation, from which any compensation 
payable under the provisions of sections sixty-nine to 
seventy-five, inclusive, of chapter one hundred and fifty -two 
shall be paid ... If any city or town . . . has neglected or 
failed for a period of five consecutive years to appropriate 
funds therefor, ... it may appropriate from such fund, in- 
cluding the income thereof, such sums as may be necessary 
for the purpose of paying a proper charge for effecting insur- 
ance to cover its liability to pay workmen's compensation." 
(Emphasis supplied.) 
While a city or town has the option of providing workmen's compen- 
sation through insurance policies or an insurance fund, it is my opinion 
that it cannot do both. The words "from which any compensation . . . 
shall be paid ..." necessitates this conclusion. The latter portion of § 
13A only authorizes an insurance policy after the city or town has failed 
to make the necessary appropriations for a period of five consecutive 
years. Furthermore, if a city or town which provided coverage under a 
fund established in accordance with G. L. c. 40, § 13A, entered into a 
contract which purported to cover only certain employees under the act, 
the rationale of the Stoltz decision would prevent the policy from cover- 
ing one segment of the employees and not others under the act. Accord- 
ingly, I conclude that a city or town which provides workmen's com- 
pensation through an insurance fund, must provide for its E.E.A. em- 
ployees who come under the act, in the same manner. 

My conclusion that the employer's liability to an E.E.A. employee 
cannot be distinguished from its liability to a non-E.E.A. employee and 
assumed by a separate carrier is not necessitated by the Emergency 
Employment Act, but rather by the statutes and case law of this Com- 
monwealth. Congress by the enactment of § 12(a) of the Emergency 

120 P.D. 12 

Employment Act was concerned not with the means of providing 
E.E.A. employees workmen's compensation benefits, but only that the 
benefits be provided at the "same levels and to the same extent as other 
employees of the employer. ..." 

Although not requested by your specific questions, some additional 
comment with respect to § 12(a) is appropriate because of the numerous 
inquiries your office has received relative to health insurance and other 
benefits provided by cities and towns to its employees. Unlike the ben- 
efits accruing from workmen's compensation coverage, health benefits 
will vary to a great extent among the governmental units of the Com- 
monwealth. Many governmental units will not provide health or other 
benefits to "temporary employees." Others may require that the indi- 
vidual be employed for a certain period of time before he is entitled to 
specified benefits. Section 12(a) does not prevent a city or town from 
imposing on its E.E.A. employees the same requirements it imposes on 
its other employees. The clear import of the section, as well as the entire 
Act, is that E.E.A. employees receive the same treatment as other em- 
ployees. If an E.E.A. employee is assumed to be a "temporary em- 
ployee" (and on this point I intimate no opinion) then the individual is 
only entitled to the same benefits afforded other temporary employees in 
the governmental unit. If the governmental unit makes no distinction as 
to temporary employees, or if the E.E.A. employee is not "temporary" 
as that word is defined by the applicable ordinance, by-law, or regula- 
tion, then no distinction should be made as to the E.E.A. employee sole- 
ly on the basis of the temporary nature of the Act. 

In short, the essential criterion is one of fairness and equality of 
treatment. Any burden imposed on a governmental unit by providing 
benefits to its E.E.A. employees is more than offset by the benefits af- 
forded to the unit by the Emergency Employment Act. 

Very truly yours, 

Attorney General 

Number 32 April 26, 1972 

Honorable Arthur W. Brownell 
Commissioner of Natural Resources 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Commissioner Brownell: 

You have requested my opinion whether the phrase "interests de- 
scribed herein" in the seventh sentence of G. L. c. 131, § 40 should be 
construed as referring only to the interests enumerated in that seventh 
sentence (public or private water supply, ground water supply, and 

P.D. 12 121 

proper flood control) or as referring to all the interests mentioned 
throughout G. L. c. 131, § 40. The full seventh sentence reads: 

"If the area on which the proposed work is to be done is 
determined by the department of natural resources to be es- 
sential to public or private water supply, to the ground water 
supply or to proper flood control, the department shall by 
written order signed by the commissioner impose such condi- 
tions as may be necessary to protect the interests described 
herein, and the work shall be done in accordance therewith." 

The word "herein" does not provide a guide to interpretation. 
" 'Herein,' as used in legal phraseology, is a locative adverb, and its 
meaning is to be determined from the context. It may refer to the sec- 
tion, the chapter, or the entire enactment in which it is used." Gatliff 
Coal Co. v. Cox, 142 F.2d 876, 882 (C.A. 6, 1944). Whichever interpre- 
tation of the ambiguity makes more sense is thus the interpretation 
which "herein" reinforces. 

The structure of the seventh sentence indicates that the ambiguous 
"herein" may refer only to that sentence. The clause containing the 
"herein" is a dependent clause, becoming operative only when, as a 
condition precedent, the department finds an area to be essential to 
water supply or flood control programs. If the department does not 
make this finding of essentiality, it may not impose conditions of any 
sort. This creates an implication that the types of conditions you may 
impose are restricted to the scope of the condition precedent. 

"Described" may operate as a limit on the field of possible interests 
encompassed by the seventh sentence. The word doubtless means more 
than a passing reference or a very general setting forth of some subject 
matter. A "description" as used in Art. 48 of the Articles of Amend- 
ment to the Massachusetts Constitution (initiative and referendum pro- 
cedures) "must be complete enough to convey an intelligible idea of the 
scope and import of the proposed amendment or law. It ought not to be 
obscured by undue particularity, nor yet be so abbreviated as not to be 
readily comprehensible." Opinion of the Justices to the House of 
Representatives, 294 Mass. 610, 613 (1936), citing Opinion of the Jus- 
tices to the Senate, 271 Mass. 582, 589 (1930). 

It may be that a higher standard of clarity is required of those who 
must "describe" a proposed law to the electorate than is required of the 
Legislature as it enacts statutes. Nevertheless, when the Legislature 
states that it has "described" something, one must look for some signs 
of the act of describing. In this light, I cannot say that the fourth sen- 
tence of section 40 describes any public interests. This is the sentence 
providing that "the conservation commission or if none the selectmen or 
mayor may recommend such measures as may protect the public in- 
terest." If "the public interest" means all the various forms which the 
public interest in land development may take, and these interests are 
"described herein" in the seventh sentence, a significant anomaly would 

122 P.D. 12 

The public interest in the use of land touches many areas beyond the 
jurisdiction of the Department of Natural Resources. Examples are: 
protection for consumers against agreements in restraint of trade, c. 
93A; equitable distribution of low-income housing, c. 40B, § 20H; and 
non-discrimination in sale or rental of housing, c. 15 IB. The broad in- 
terpretation of "interests described herein" would require the Depart- 
ment to consider such interests in an adjudicatory hearing on an applica- 
tion for a c. 131, § 40 permit. It is doubtful that the Legislature intended 
the Department to consider such matters when the Legislature has es- 
tablished other procedures more specifically designed to consider these 

The preferable construction, then, is that "interests described herein" 
means "interests described in this sentence." By this interpretation, 
once your Department makes a finding that a particular area is essential 
to public or private water supply, ground water supply, or to proper 
flood control, it may then impose such conditions as may be necessary 
to protect public or private water supply, ground water supply or proper 
flood control. 

Very truly yours, 



Number 33 April 26, 1972 

The Honorable Henry W. Kolbe, M.D. 
Commissioner of Public Health 
600 Washington Street 
Boston, Massachusetts 02111 

Dear Commissioner Kolbe: 

You have requested my opinion with respect to the interpretation of 
St. 1971, c. 1080 and the validity of certain rules and regulations promul- 
gated thereunder by the Department of Public Health (the Department), 
and also with respect to the relationship of c. 1080 to G. L. c. Ill, § 51. 
You state that your questions are prompted by the proposed operation 
by the Children's Cancer Research Foundation, Inc., (the Foundation) 
of a cancer hospital for research and patient treatment. 

I summarize the circumstances which you state have led to your re- 
quest for my opinion. The Foundation, long the operator of a cancer 
treatment clinic (with no in-patient facilities) in the "Jimmy Fund" 
building in Boston, informed the Department in 1969 of its plans to con- 
struct and operate a hospital for cancer research and in-patient treatment 
for cancer, to be known as the Charles A. Dana Cancer Center (the 
Dana Hospital). On May 17, 1971, the then Commissioner of Public 
Health advised the Foundation by letter that the Department had de- 
termined pursuant to G. L. c. 1 1 1, § 51 ' that there was a need for the 

1 Section *>l provides in paragraph 2: "'No original license sh;ill he issued lo establish 01 maintain ;i hospital, an institu 
Hon tor the care ol unwed mothers or a clinic, unless there is determination hy the department that there is need for such 

.1 lacilit) at the designated location 

P.D. 12 123 

proposed facilities with 96 beds for acute care and 64 beds for other pa- 
tients. Construction of the hospital commenced on or about June 29, 

On November 15, 1971, the Governor approved St. 1971, c. 1080, 
with an emergency preamble, to take effect immediately. Section 1 of 
chapter 1080 provides: 

"Notwithstanding any contrary provision of law, no person 
shall (a) commence construction of a new health care facility 
at a specific location or commence construction altering, ad- 
ding to, making major repairs to, remodeling, renovating or 
replacing an existing such facility or part thereof or (b) sub- 
stantially change its services, during the period extending 
from the effective date of this act to May thirty-first, nineteen 
hundred and seventy-two unless there is a determination by 
the department of public health that there is need therefor. 
Such determination shall, upon request of the person applying 
therefor, be made after hearing and shall be based upon cur- 
rent information concerning, among other things, present and 
projected future needs, shall be in writing and set forth the 
reasons therefor, shall be kept on file in the office of the 
commissioner of public health and shall be a public record. 
Except in the case of an emergency requiring immediate ac- 
tion to prevent further damage to a health care facility or part 
thereof, such determination shall be made only after ten days' 
notice and opportunity to comment upon the need for such 
construction or change in services has been given to the 
single agency of the Commonwealth and appropriate 
areawide health planning agency designated pursuant to the 
provisions of Section 314(a) and 314(b) of the Federal Public 
Health Service Act. The provisions of this Section shall not 
apply to any construction or change in service requiring a 
capital expenditure of less than one hundred thousand dol- 

Under § 4 of c. 1080, the Department is "authorized to promulgate 
rules and regulations necessary for the implementation of this act." 

Acting under § 4 of c. 1080, the Department adopted "Rules and 
Regulations for Determinations of Need" (the Regulations). Section 
1.1(b) of the Regulations provides: 

"(b) Any construction or modification on or after 
November 15, 1971, without a valid certificate of need issued 
by the Department shall be deemed commencement of 'con- 
struction' and in violation of St. 1971, c. 1080, (1) if such con- 
struction or modification, although commenced prior to 
November 15, 1971, was in violation of any applicable provi- 
sion of law, or (2) if such construction or modification was 
not part of a continuing project commenced prior to 
November 15, 1971." 


. _ . — _ 

p E : 

ucoon of the hospt- 
ttion 51. which for- 

- _-- ::e: :: _-: 

^■1 r- 

I: :5 i 


re: :: :^ 
is & vioJati 

: z : : ■ 

G. L-c. Ill, f 51. 

See I Op. Gen- 2"5: I Op. 


of the 

the act. is to be 

Boston* Sit 
mmdmtum Co. v. 
Jbc pril 18. 1972 

off lofc. 10S0 is that the act does 

4 t- c 

- iKjhM l^--* '.i 

P.D. 12 125 

not expand the scope of its authority by the adoption of regulations 
which extend the terms of the act. Bureau of Old Age Assistance of 
Natick v. Commissioner of Public Welfare, 326 Mass. 121, 124, and 
cases cited; 1965-1966 Op. Att'y. Gen. 364, 365, and cases cited. Sec- 
tion 1.1(b) of the Regulations purports to extend the meaning of § 1 of 
the act to hospitals not included in the scope of the act and is in excess 
of the authority of the Department. 

Consequently, it is my opinion that any health care facility which was 
under construction before November 15, 1971, is not affected by § 1 of 
c. 1080, whether or not the commencement of construction may not 
have been in compliance with the literal terms of G. L. c. 1 1 1, § 51. The 
Department is therefore restricted to those remedies provided in G. L. 
c. 1 1 1, for enforcing compliance with §51.1 note that § 56 of c. Ill does 
not provide any penalty for failure to submit to the Department and se- 
cure its approval of final architectural plans and specifications. At most, 
a person commencing construction before such approval risks the ex- 
pense that would be consequent to a disapproval of any part of the con- 
struction already completed. 

You also ask whether the Department must make a determination 
after hearing of need for the Dana Hospital under § 2 of c. 1080 4 before 
a license for the hospital may be issued. Inasmuch as it is clear that the 
Dana Hospital will not be ready for operation before May 31, 1972, the 
date upon which c. 1080 will expire, it is not appropriate for me to ex- 
press an opinion on the applicability of § 2. See 1964-1965 Op. Att'y. 
Gen. 77, 79. As noted above, the Department determined on May 17, 
1971, that for purposes ofG. L. c. Ill, § 51, there was a need for the 
proposed Dana Hospital. That was a timely and sufficient determination 
in light of the fact that the proposed hospital would be housed in a build- 
ing not yet constructed. The Department should therefore proceed in 
the normal course under § 51 in its review of the proposed hospital. 

Very truly yours, 


Attorney General 

Number 34 May 1, 1972 

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

Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mrs. Sullivan: 

You have requested my opinion whether the Board of Registration in 
Nursing has sufficient statutory authority to conclude that a school of 

4 Section 2 provides in part: "Notwithstanding the provisions of section fifty-one of chapter one hundred and eleven of 
the General Laws, the department of public health shall not issue any original license to establish or maintain a hospital, 
an institution for the care of unwed mothers or a clinic, as defined in section fifty-two of said chapter one hundred and 
eleven, during the period extending from the effective date of this act to May thirty-first, nineteen hundred and seventy- 
two, unless there is a determination by said department in the manner provided in section one of this act, that there is 
need for such a facility at the designated location . . . ." 

126 P.D. 12 

nursing located in another country and designated in that country as a 
professional school actually provides a curriculum which is not compar- 
able to that required in approved schools of nursing in Massachusetts 
but is substantially the same as that required in approved schools of 
practical nursing in Massachusetts. A further question is whether the 
Board can admit graduates of such schools to the practical nursing licen- 
sure examination. For the reasons hereinafter stated, I answer both 
questions in the affirmative. 

General Laws, c. 1 12, § 74 A, which governs the registration of practi- 
cal nurses, provides in pertinent part: 

"An applicant who furnishes satisfactory proof that he is of 
good moral character and that he is a graduate of a school for 
practical nurses approved by the board or was a student in 
good standing at an accredited school of professional nursing 
before completing the program of studies and, at the time of 
withdrawal, had completed a program of study, theory and 
clinical practice equivalent to that required for graduation 
from an approved school of practical nursing, shall, upon 
payment of twenty-five dollars, be examined by the board 
and, if found qualified, shall be licensed, with a right to use 
the title licensed practical nurse and to practice as such . . . ' 
(Emphasis supplied.) 

Section 81B of said Chapter 112 authorizes the Board to 

"... approve, for the purposes of [section] . . . seventy- 
six A, any school for nurses or for practical nurses, as the 
case may be, in another state or country which maintains 
standards substantially the same as those required for an ap- 
proved school in this commonwealth ..." (Emphasis sup- 

I read those two statutes together in order to interpret the 
Legislature's intent regarding the licensure of practical nurses. 

' . . . [I]t is well settled that in interpreting a statute, the 
court will not look merely to a particular clause in which gen- 
eral words may be used, but will take in connection with it 
the whole statute (or statutes on the same subject) and the ob- 
jects and policy of the law, as indicated by its various provi- 
sions, and give to it such a construction as will carry into ex- 
ecution the will of the Legislature, as thus ascertained, ac- 
cording to its true intent and meaning." Brown v. Duchesne, 
60 U.S. 183, 194. 
Under such an analysis the true intent and meaning of the Legislature 
in enacting G. L. c. 112, §§ 74A and 81 B emerge as the desire to insure 
that all those licensed as practical nurses in this Commonwealth have 
received equivalent training, regardless of where the training is received. 
Whether the school attended by an applicant is designated professional 
or practical is therefore not controlling. Rather, the Board of Registra- 

P.D. 12 127 

tion in Nursing must make a determination as to the quality of the train- 
ing received. 

The extent of discretion the Board may exercise in making such a de- 
termination has been considered with reference to St. 1956, c. 371, § 2 
which was a predecessor of G. L. c. 112, § 74A. That statute allowed 
for the examination for registration as a practical nurse to be taken by 

"who furnishes satisfactory proof that he was a student in 
an approved school for nurses located within the common- 
wealth and was at the time of his withdrawal therefrom in 
good standing and that he received therein theoretical instruc- 
tion and clinical experience equivalent to that required for 
graduation from [approved] schools for practical nurses . . ."■ 

When asked for his opinion as to the Board of Registration in 
Nursing's discretion under this statute, one of my predecessors con- 
cluded that: 

"The burden is upon the applicant to furnish satisfactory 
proof that the required instruction and experience had been 
received. The board should then use its own professional 
knowledge and experience to determine whether or not the 
student had received a reasonable 'equivalent' to the instruc- 
tion and experience required for graduation from approved 
schools for practical nurses. You [the Board] have no discre- 
tion to ignore this requirement, but you must use your knowl- 
edge and experience and discretion in determining whether or 
not this equivalent exists as a matter of fact." Op. Atty. 
Gen., Jan. 8, 1957, p. 53, 55. 
In conclusion, then, the Board of Registration in Nursing may admit 
graduates of professional nursing schools located in foreign countries to 
its practical nursing licensure examination if the Board concludes, using 
its knowledge, experience and discretion, that such schools provide a 
curriculum equivalent to that of practical nursing schools within the 

Very truly yours, 


Attorney General 

Number 35 May 2, 1972 

Honorable M. Joseph Stacey, Comptroller 
Executive Office for Administration and 

State House 
Boston, Massachusetts 02133 

Dear Mr. Stacey: 

You have requested my opinion as to the proper payee of moving and 
relocation expense payments when such payments have been assigned. 

128 P.D. 12 

Such payments are made to individuals and businesses displaced as a re- 
sult of eminent domain takings by the Department of Public Works. 
Those takings are usually made under the accelerated highway program, 
and I have, in a previous opinion to the then Commissioner of Public 
Works, discussed at length the authority and obligations of the Depart- 
ment to make such payments. Op. Atty. Gen'l, June 25, 1971, No. 
70/71-51 (copy enclosed). I incorporate herein so much of the prior opin- 
ion as is relevant and pertinent to the questions which you have posed. 

In an informal opinion rendered by the Chief of my Administrative 
Division to the Commissioner of Public Works, the Commissioner was 
advised that, in the case of assignments, the proper payee would be 
either (1) a bank as assignee of the relocatee or (2) a mover as assignee 
of the relocatee. The Department was there advised to await proof satis- 
factory to it that such an assignment had been made before proceeding 
to process the payment. 

You have now advised that it has been the policy of the Comptroller 
not to recognize assignments in making payments to relocatees, and you 
state further that payments are made to the vendor or contractor, but 
that a check is mailed to any address as directed. Accordingly, you re- 
quest an opinion on some eight questions ranging from what effect must 
be accorded opinions signed by assistant attorneys general to various 
hypothetical situations involving assignments of claims against the 
Commonwealth where an assignment has been made. Since I am treat- 
ing your request as one appropriate for a formal opinion, I find it un- 
necessary at this time to delineate the precise effect of an opinion signed 
by one of my assistants. And, since many of your questions involve 
hypothetical situations not based on sufficient facts, I beg to be excused 
from answering those questions, reminding you, of course, that at such 
time as the questions must be resolved in order for you to perform your 
official duties, I stand ready to render such legal assistance as is neces- 
sary. See 3 Op. Atty. Gen'l 425, 428. 

Accordingly, I proceed to answer your request confined to the prob- 
lems of assignments of moving and relocation payments due relocatees 
under the accelerated highway program as a result of takings of the De- 
partment of Public Works. You ask whether you may continue to follow 
the policy of not recognizing assignments, but, in the alternative, make 
payments to the vendor or contractor, and have the check mailed to any 
address as directed. I observe first that the question of where the check 
is to be mailed does not involve any question of law but is rather an ad- 
ministrative matter for the Comptroller to determine. Putting aside that 
portion of the question, I answer your question in the negative. 

It is undisputed that a relocatee has a vested right to moving and relo- 
cation payments, for the Department of Public Works is required under 
G. L. c. 81, § 7J to make such payments. That being the case, the re- 
locatee has the power to assign such payments, and an assignment, if 
validly made, is binding when it is fully perfected. Compare McLaughlin 

P.D. 12 129 

v. New England Telephone & Telegraph Co.. 345 Mass. 555, 564. All 
persons having notice of the assignment would be bound to honor it, 
and, accordingly, the Comptroller may not continue to disregard as- 
signments which have been properly executed. 

The question whether a valid assignment has been made is a question 
of fact which must be resolved by the Department before it proceeds to 
process a relocation payment. Aetna Casualty & Surety Co. v. Harvard 
Trust Co.. 344 Mass. 160, 166. I am therefore of the opinion that it 
would be proper for the Commissioner of Public Works to certify pay- 
ment to an assignee without the approval of the Attorney General that 
the assignment is valid. 

Very truly yours, 

Attorney General 

Number 36 May 3, 1972 

Mr. Walter J. Poitrast 

Direetor of Building Construction 

Executive Office for Administration 

and Finance 
Levered Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Poitrast: 

You have requested my opinion whether the Director of the Bureau of 
Building Construction in the Executive Office of Transportation and 
Construction has complete jurisdiction over the installation and accep- 
tance of wiring on projects coming under his supervision and control 
pursuant to the provisions of G. L. c. 6A. §§ 20-30, inclusive. 

Since you have not submitted specific facts with respect to a particu- 
lar construction project, I can only answer your question in general 
terms. 1966-67 Op. Atty. Gen. p. 221. For the reasons stated hereinaf- 
ter, 1 answer your question in the negative. 

General Laws, c. 6A, § 20 established within the Executive Office of 
Transportation and Construction a Bureau of Building Construction. 
The secretary of said bureau is authorized by § 21 to appoint, with the 
approval of the governor, a director of building construction. Section 22 
of said Chapter 6A provides in relevant part: 

"... [T]he director of building construction shall, in the 
manner and to the extent provided by this chapter, have con- 
trol and supervision of all building construction projects, as 
hereinafter defined, which may be undertaken by the com- 
monwealth or by any county." 

"Project" is defined by § 22 as any project which is (1) financed in 
whole or in part by appropriations, bond issue or federal funds; (2) has 
an estimated cost exceeding ten thousand dollars, and (3) is undertaken 
for the construction of any building and appurtenant structures, facilities 
and utilities including the original equipment and furnishing thereof. The 
definition further includes any project undertaken for the alteration, re- 
pair or addition to any existing building and appurtenant structure, pro- 
vided, the project requires alteration of the structural or mechanical de- 
sign of the building; the estimated cost of the project exceeds ten 
thousand dollars and the original requests for such a project were made 
to the director. 

Section 24 provides that the "working plans and specifications" for 
each project be submitted to the director for his approval, and following 
final approval, the director, "shall advertise in a reasonable number of 
newspapers for proposals for performance of the work ..." Subject to 
certain conditions not relevant here, the director is required to award the 
contract or contracts to the "lowest responsible eligible bidder ..." 

In addition to other responsibilities and duties the director is required 
by § 27(1) to periodically, "cause each project to be inspected to deter- 
mine the quality of the construction thereof and to assure that the proj- 
ect and construction thereof shall comply with the plans, specifications 
and contracts therefor." 

The resolution of your question requires an examination of several 
statutory provisions relating to the inspection of electrical wiring. 

General Laws, c. 166, § 32 authorizes the appointment of an inspector 
of wires by cities, towns and districts. Said section provides in part: 

"Such inspector shall supervise every wire over or under 
streets or buildings in such city, town or district and every 
wire within a building designed to carry an electric light, heat 
or power current; shall notify the person owning or operating 
any such wire whenever its attachments, insulation, supports 
or appliances are improper or unsafe ..." 
In 1958, one of my predecessors rendered an opinion to the then 
Commissioner of Administration in which it was stated that the inspec- 
tor of wires did not have jurisdiction under c. 166, § 32 over the installa- 
tion of wiring by the Commonwealth in and on property of the Com- 
monwealth. As stated in the opinion: 

"The inspection of electric wiring is a police power, and 
the fountain of police power is the Legislature, acting under 
the authority of the State Constitution. The Legislature has 
delegated a portion of its power in this respect to the inspec- 
tors of wires in local municipalities, but there is an implied 
exception of State property from the property over which 
they have supervision. Any other interpretation would be in- 
consistent with the sovereignty of the Commonwealth. It 
cannot be assumed that the sovereign will disobey his own 
laws." 1957-58 Op. Atty. Gen. p. 65. 

P.D. 12 131 

General Laws, c. 143, provides for the regulation and inspection of 
certain buildings and structures in the Commonwealth. The first sen- 
tence of § 2 A of said chapter provides: 

4 'The provisions of this chapter relative to the safety of 
persons in buildings shall apply to buildings and structures, 
other than the state house, owned, operated or controlled by 
the commonwealth, and to buildings and structures owned, 
operated or controlled by any department, board or commis- 
sion of the commonwealth, or by any of its political 
subdivisions, in the same manner and to the same extent as 
such provisions apply to privately owned or controlled build- 
ings occupied, used or maintained for similar purposes." 
(Emphasis supplied.) 
With respect to the electrical wiring contained in said buildings, § 3L 
of c. 143 provides in relevant part: 

"The board of fire prevention regulations shall make and 
promulgate, . . . rules and regulations relative to the installa- 
tion, repair and maintenance of electrical wiring and electrical 
fixtures used for light, heat and power purposes in buildings 
and structures subject to the provisions of sections three to 
sixty, inclusive. 

"No person shall install for hire any electrical wiring or fix- 
tures subject to this section without first or within five days 
after commencing the work giving notice to the inspector of 
wires appointed pursuant to the provisions of section thirty- 
two of chapter one hundred and sixty-six . . . 

"Any person installing for hire electrical wiring or fixtures 
subject to this section shall notify the inspector of wires in 
writing upon the completion of the work. The inspector of 
wires shall . . . give written notice of his approval or disap- 
proval of said work. A notice of disapproval shall contain 
specifications of the part of the work disapproved, together 
with a reference to the rule or regulation of the board of fire 
prevention regulations which has been violated." (Emphasis 
On May 18, 1967, my predecessor rendered an opinion which con- 

"... [Gjenerally speaking, a private contractor installing 
electrical wiring or fixtures used for light, heat or power pur- 
poses in any building or structure other than the State House, 
owned, operated or controlled by the Commonwealth is re- 
quired to notify the municipal inspector of wires in accord- 
ance with § 3L thereof . . ." 1966-67 Op. Atty. Gen. p. 221, 

132 P.D. 12 

The 1967 opinion noted that the notice requirement of § 3L applied 
only to the installation of "electrical wiring or fixtures subject to this 
section ..." The scope of § 3L is, in turn, limited to buildings "subject 
to the provisions of sections three to sixty, inclusive." The opinion con- 
cluded that in light of § 2 A, quoted infra, all buildings and structures, 
other than the State House, which are owned or operated by the Com- 
monwealth are subject to the provisions of Chapter 141 to the same ex- 
tent as if privately owned or operated. Accordingly, if the particular 
building is subject to the provisions of c. 141, §§ 3-60, it is also subject to 
the notice requirements of § 3L. 

The two opinions to which I have referred may appear inconsistent, 
but in fact they are not. The 1958 opinion concerned the inspection of 
wires pursuant to c. 166, § 32. The opinion correctly reasoned that an 
inspection under said statute would be tantamount to subjecting the 
Commonwealth to local ordinances, regulations and by-laws, and as 
noted in the opinion, such a construction is to be avoided unless it 
clearly appears that it was the intention of the Legislature that such or- 
dinances apply. However, with respect to inspections pursuant to c. 
143, § 3L, there is a clear manifestation of the Legislature's intent that 
the provisions of § 3L apply to buildings and structures owned or oper- 
ated by the Commonwealth. Moreover, the inspection under § 3L is to 
insure compliance with the rules and regulations of the Board of Fire 
Prevention Regulations rather than a local ordinance. 1 

The subsequent enactment of Chapter 6A did not, in my opinion, ex- 
empt projects undertaken pursuant to said chapter from the provisions 
of c. 143, § 3L. To hold otherwise would be tantamount to repealing c. 
143, § 2A which contains no exceptions other than the State House. Re- 
peal of statutes by implication is not favored in this Commonwealth. 
The former statute is not deemed to have been repealed unless it is so 
"repugnant to and inconsistent with the later enactment that both cannot 
stand ..." Haffner v. Director of Public Safety of Lawrence, 329 Mass. 
709, 713-14. Statutes which appear to be inconsistent with each other, in 
whole or in part, must be construed so as to give reasonable effect to 
both unless there is some positive repugnancy between them. School 
Committee of Gloucester v. Gloucester, 324 Mass. 209, 212. 

General Laws, Chapters 6A and 143 are neither inconsistent nor re- 
pugnant to each other. The duties and responsibilities prescribed by 
each are different. The duty of inspection imposed upon the director by 
c. 6A, § 27(1) is principally directed towards assuring that the construc- 
tion is in compliance with the approved plans and specifications, 
whereas c. 143, § 3L is designed to assure compliance with the Massa- 
chusetts Electrical Code. Obviously, the latter is equally important in 
public as well as private buildings. Cf 1960-61 Op. Atty. Gen. p. 136, 

1 The Board of Fire Prevention Regulations, pursuant to the provisions of c. 143. § 3L, has promulgated an electrical 
code substantially identical to the 1968 edition of the National Electrical Code (NFPA No. 70, USASC 1-1968). 

P.D. 12 133 

It should be noted that there may be projects not subject to Chapter 
143 despite the seemingly all-inclusive language of § 2A. 2 However, in 
the absence of specific facts relating to a particular project, I conclude 
generally that projects undertaken pursuant to c. 6 A are not subject to 
inspection under c. 166, § 32 but are subject to inspection pursuant to c. 
143, § 3L. 

Very truly yours, 

Attorney General 

Number 37 May 9, 1972 

Honorable John F. Kehoe, Jr. 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Kehoe: 

You have requested my opinion as to "what constitutes a 'fraternal 
organization' (branch, chapter or affiliate) in light of Chapter 486 of the 
Acts of 1971." 

Nowhere in the General Laws has our Legislature defined the term 
"fraternal organization." The Legislature has, however, defined the 
terms "fraternal benefit society" and "charitable organization," and I 
think it would be helpful to look at these definitions before determining 
what constitutes a "fraternal organization." 

General Laws, c. 176, § 1 provides in part: 

"Any incorporated society, order or supreme lodge, with- 
out capital stock, conducted solely for the benefit of its mem- 
bers and their beneficiaries, and not for profit, operated on a 
lodge system with ritualistic form of work, having a represen- 
tative form of government, and which makes provision for the 
payment of benefits in accordance with this chapter, is 
hereby declared to be a fraternal benefit society." 
General Laws, c. 180, § 2, in listing the purposes for which a "chari- 
table corporation" may be formed, provides as follows: 

"Such corporation may be formed for any civic, educa- 
tional, charitable, benevolent or religious purpose; for the 
prosecution of any antiquarian, historical, literary, scientific, 
medical, artistic, monumental or musical purpose; for estab- 
lishing and maintaining libraries, for supporting any mission- 
ary enterprise having for its object the dissemination of re- 
ligious or educational instruction in foreign countries; for 
promoting temperance or morality in the commonwealth; for 

J See 1960-61 Op. Atty. Gen. p. 50. which concluded that the Massachusetts Correctional Institutions are not subject to 
the provisions of c. 143. § 2A. 

134 p.D. 12 

encouraging athletic exercises or yachting; for encouraging 
the raising of choice breeds of domestic animals and poultry; 
for the association and accommodation of societies of Free 
Masons, Odd Fellows, Knights of Pythias or other charitable 
or social bodies of a like character and purpose; for the estab- 
lishment and maintenance of places for reading rooms, li- 
braries or social meetings; for establishing boards of trade, 
chambers of commerce and bodies of like nature; for the pur- 
pose of providing nonprofit credit counseling services, as de- 
fined in section two A." 

It is my opinion that a "fraternal organization" is not so cir- 
cumscribed or restricted in its purposes, functions or organizational 
structure as either a "fraternal benefit society" or a "charitable corpora- 
tion." On the other hand, unlike a private club, a "fraternal organiza- 
tion" may not be organized or operated for pecuniary profit or gain. 
Rather, it is organized and operated for the pleasure, recreation and 
mutual benefit of its membership, to the exclusion of profitable pur- 
poses. While not necessary, a "fraternal organization" often tries to fos- 
ter the moral, social, cultural and intellectual improvement of its mem- 
bers. In addition, a "fraternal organization" may, although in my opin- 
ion it need not, be organized for the benefit of men generally. For exam- 
ple, it might be engaged in charitable work in the community, or it might 
be pursuing some civic activity or goal of benefit to the general public. 
While a "fraternal organization" may raise money or generate funds in 
an attempt to realize its purposes, it is a non-profit organization, and no 
part of any monies accumulated may be distributed to, or accrue in kind 
to, any of its members. 

Very truly yours, 


Attorney General 

Number 38 May 17, 1972 

Mrs. Glendora Mcllwain Putnam, Chairman 

Commission Against Discrimination 

120 Tremont Street 

Boston, Massachusetts 02108 

Dear Mrs. Putnam: 

You have requested my opinion regarding the continuing validity of 
certain Massachusetts laws regulating the employment of women in 
specifically enumerated occupations. You refer particularly to G. L. c. 
149, §§ 67, 69, 70, 71, 72 and 73 and ask whether those laws remain valid 
when considered "vis-a-vis the anti-discrimination laws of the com- 
monwealth." * By "anti-discrimination laws of the commonwealth," 
I assume you mean G. L. c. 151 B, § 4(1) prohibiting, inter alia, (1) re- 

1 Subsequent to the date on which you requested my opinion, the General Court enacted Chapter 47 of the Acts of 1972. 
That statute amended sections 69, 70, 71, 72 and 73 of Chapter 149 to eliminate the distinctions based upon sex with 
which your opinion letter is concerned. I shall treat your request with respect to the foregoing sections as moot, there- 
fore, and deal only with the questions raised by the restrictions imposed on the employment of women by section 67 of 
Chapter 149. 

P.D. 12 135 

fusal to hire, and (2) discrimination "in terms, conditions or privileges of 
employment," on the basis of sex. Chapter 151 B goes on to provide, 
however, that "nothing contained in this chapter shall be deemed to re- 
peal any provision of chapter one hundred and forty-nine which estab- 
lishes standards, terms or conditions of employment which are applica- 
ble to females . . ." G. L. c. 151B, § 9. Thus, the "anti-discrimination 
laws of the commonwealth" (G. L. c. 151 B, § 4) do not apply to the 
provision of Chapter 149 which you have enumerated and, therefore, 
cannot be held to prohibit the restrictions on the employment of women 
contained therein. 

The inquiry into the validity of the enumerated section of Chapter 149 
is not complete, however, until that section has also been tested under 
Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000 et seq. 
Should the section in question make distinctions based upon sex when 
sex is not a "bona fide occupational qualification reasonably necessary 
to the normal operation of [a] . . . particular business or enterprise," 
such distinctions would be invalid. 42 U.S.C. § 200e-2(a) (e). 

At the outset, it should be made clear that Title VII prohibits sex dis- 
crimination (or state laws which require such, see 42 U.S.C. § 2000e-7) 
under limited circumstances. The federal act applies only to businesses 
or enterprises. which (1) have 25 or more employees, (2) are engaged in 
interstate commerce and (3) are not private clubs. 42 U.S.C. § 2000e(b) 
(g) (h). These limitations will have the effect of permitting certain of the 
Massachusetts restrictions made in section 67 (incorporating by refer- 
ence §§ 56 and 60) of Chapter 149 to remain in effect. For example, one 
of the places of work to which section 67 applies, a private club, (see G. 
L. c. 149, § 56) is not subject to the federal statute (see 42 U.S.C. § 
2000e(b) (2) ). Thus, as applied to such clubs, there is no federal statu- 
tory bar to the operation of the Massachusetts law. Likewise, a number 
of the places of work regulated by section 67 (incorporating sections 56 
and 60) may have fewer than 25 employees or may be engaged in only 
intrastate commerce. (See, e.g., domestic service in a home. — § 56; 
manicuring or hairdressing establishment — § 56; barber shop — § 60; 
bootblack stand — § 60; stable — § 60, as well as several others.) In the 
occurrence of either of the foregoing conditions, such places would 
come without the federal statute, and, therefore, be subject to section 
67. The determination of whether the federal statute applies (and 
thereby bars the application of section 67 to the extent that the latter 
conflicts) is one which can be made by the Commission for each specific 
factual situation only as such a situation arises. 

Should a particular employer be subject to Title VII, that employer 
may not distinguish between men and women employees, present or 
prospective, on the basis of sex unless sex is a bona fide occupational 
qualification. 42 U.S.C. § 2000e-2(a) (e). Equally clear is the fact that 
the Commonwealth may not require such distinctions to be made 
through the use of its General Laws. 42 U.S.C. § 200e-7. To the con- 

136 P.D. 12 

trary, state laws which contain inflexible sexual classifications based 
upon sterotypic characteristics of the class as a whole and not tailored to 
the characteristics of individual workers are in conflict with Title VII 
and, therefore, null and void. See Bowe v. Colgate-Palmolive Company, 
416 F.2d 711, 717-18 (CA 7 1969); Weeks v. Southern Bell Telephone & 
Telegraph Company, 408 F.2d 228, 235-36 (CA 5 1969); Cheatwood v. 
Southern Bell Telephone & Telegraph Company, 303 F. Supp. 754, 
759-60 (M.D. Alabama 1969); Richards v. Griffith Rubber Mills, 300 F. 
Supp. 338, 340 (D. Oregon 1969); Garneau v. Raytheon, 323 F. Supp. 
391, 394 (D.C. Mass. 1971); Local 246 Utility Workers v. Edison 
Company, 320 F. Supp. 1262 (N.D. Calif. 1970). It is my opinion that, 
in so far as it establishes minimum ages for employment of women 
which are more stringent than those for employment of men, section 67 
of Chapter 149 makes such inflexible and sterotypic classifications based 
upon sex and, as such, is pre-empted by the federal statute. This does 
not mean that an employer may not attempt to demonstrate that sex is a 
bona fide occupational qualification necessary to the operation of his 
business, for he may; but the standards for such a determination are 
strict and to be scrupulously applied. See 29 C.F.R. § 1604.1 (August 
19, 1969). Exemptions from the purview of the federal act on the basis of 
a bona fide occupational qualification will be the exception rather than 
the rule. 

Undoubtedly, the Commission will be faced with circumstances, not 
governed by Title VII, in which section 67 of Chapter 149 must be given 
effect. In such circumstances, certain Massachusetts women workers 
may be treated unequally vis-a-vis their counterparts in federally regu- 
lated places of work. This unequal tratment may deny to such women 
their constitutionally provided right to equal protection of the laws. 
However, as it does not appear from your letter that a resolution of this 
constitutional question is "clearly required to enable [you] ... to dis- 
charge the duties required of [you] ... by law," I must decline to specu- 
late about the matter. See Op. Atty. Gen., Dec. 4, 1922, p. 649. I might 
add that outside of the context of a specific factual setting, the answer to 
such a constitutional inquiry would be impossible. 

Very truly yours, 

Attorney General 

Number 39 May 18, 1972 

Donald C. Gates, M.D. 
Superintendent, Massachusetts 

Hospital School 
Canton, Massachusetts 02021 

Dear Doctor Gates: 

You have requested, with the approval of the Commissioner of Public 
Health, my opinion whether the Massachusetts Hospital School and its 

P.D. 12 137 

employees qualify for participation in the tax sheltered annuity program 
provided for by St. 1963, c. 466 and through it section 403(b) (1) of the 
Internal Revenue Code (26 U.S.C. § 403(b) (1) ). It is my opinion that 
the School and its employees do qualify though not in the exact fashion 
which may be anticipated. 

St. 1963, c. 466 (G. L. c. 15, § 18A) provides, in so far as is here re- 
levant, that "... the board or other body or officer of any . . . public 
educational institution maintained and operated by the commonwealth 
... on behalf of any employee thereof, may enter into a written agree- 
ment with any such employee to purchase an individual annuity contract 
for such employee ..." The purpose of this grant of authority, as stated 
by the Act's preamble, is "to enable the commonwealth and political 
subdivisions thereof to purchase annuities with the assent of the emp- 
loyees of . . . educational institutions supported and maintained by the 
commonwealth . . . and make available forthwith to such employees cer- 
tain provisions of the Internal Revenue Code." The provisions of the 
Internal Revenue Code to which the statute presumably refers are (1) 26 
U.S.C. § 403 — which exempts from taxation income received under 
certain annuity contracts, (2) 26 U.S.C. § 501(c) (3) — which helps to 
define one category of exemption, and (3) 26 U.S.C. § 151(e) — which 
helps to define a second category of exemption. 

I have little doubt that the Massachusetts Hospital School is a "public 
educational institution," (see, e.g., G. L. c. Ill, § 62J, 62K, 62 M) just 
as I do not question that it is "maintained and operated by the com- 
monwealth." Id. Under the terms of Chapter 466, therefore, the School 
"may enter into a written agreement with any . . . employee to purchase 
an individual annuity contract for such employee." St. 1963, c. 466, § 1. 
A more important question from your perspective, I am certain, is 
whether that annuity contract would qualify for tax-exempt status under 
section 403(b) (1) of the Internal Revenue Code. 

For taxing purposes, amounts received under annuity contracts 
purchased by an employer for his employees are generally includable in 
a taxpayer's computation of gross income for the year in which such 
amounts are received. 26 U.S.C. § 403(a) (1). If an annuity contract is 
purchased for an employee by an employer as defined in 26 U.S.C. § 
501(c) (3) or for an employee who performs services for an educational 
institution as defined in 26 U.S.C. § 151(e) (4) by an employer which is a 
state, however, the amounts received under that annuity contract are 
exempt from taxation. 26 U.S.C. § 403(b) (1). If the Massachusetts 
Hospital School is either a section 501(c) (3) employer or a state educa- 
tional employer, therefore, the proceeds from annuity contracts which it 
purchases for its employees will be tax exempt. 

Section 501(c) (3) lists in the category of employers who may purchase 
tax-sheltered annuity contracts the following: "Corporations, and any 
community chest, fund, or foundation, organized and operated exclu- 
sively for religious, charitable, scientific, testing for public safety, liter- 

138 P.D. 12 

ary or educational purposes, or for the prevention of cruelty to children 
or animals, no part of the net earnings of which inures to the benefit of 
any private shareholder or individual, no substantial part of the activities 
of which is carrying on propaganda, or otherwise attempting, to influ- 
ence legislation, and which does not participate in, or intervene in (in- 
cluding the publishing or distributing of statements), any political cam- 
paign on behalf of any candidate for public office." While the statute it- 
self is unclear, the Internal Revenue Service has ruled that ''where an 
organization desires to have the benefit of . . . section 403 of the Code, 
. . . and the particular organization meets the statutory requirements for 
exemption under section 501(c) (3) of the Code, it may be granted ex- 
emption thereunder, regardless of the fact that it also qualifies as a 
wholly-owned state instrumentality . . ." Rev. Rul. 55-319, CB 1955-1 at 
119. "A state or municipality itself, however, would not qualify as an 
organization described in section 501(c) (3) since its purposes are clearly 
not exclusively those described in section 501(c) (3) of the Code ... It 
follows, therefore, that where the particular branch or department under 
whose jurisdiction the activity in question is being conducted is an in- 
tegral part of a state or municipal government, the provisions of section 
501(c) (3) would not be applicable. For example, where a public school, 
college, university or hospital is an integral part of a local government, it 
could not meet the the requirements for exemption under section 501(c) 
(3) of the Code." Rev. Rul. 60-384, CB 1960-2, at 172. 

The Massachusetts Hospital School performs what appears to be an 
essentially governmental function of educating and caring for crippled 
and deformed children who are in many instances wards of the state. In 
fact, under the General Laws "the admission of a child ... to the 
school . . . [is] deemed a commitment of the child to the care and cus- 
tody of the commonwealth." G. L. c. Ill, § 62M. In such circum- 
stances, the School almost certainly will be considered "an integral part 
of local government" and, thereby, not a section 501(c) (3) employer. 
But this does not mean that the School is unable to purchase tax- 
sheltered annuity contracts for its employees. The School may and does 
qualify as a State employer in an educational institution which (in 
accordance with the provisions of 26 U.S.C. § 151(e) (4) ) "normally 
maintains a regular faculty and curriculum and normally has a regularly 
organized body of students in attendance at the place where its educa- 
tional activities are carried on." 26 U.S.C. § 151 (e) (4). As such it 
comes within the second of the Section 403(b) (1) categories of em- 
ployers who may purchase tax-sheltered annuity contracts for their em- 
ployees. See 26 U.S.C. § 403(b) (1) (A) (ii). It is my opinion, therefore, 
that the Massachusetts Hospital School may, under St. 1963, c. 466, 
enter into a written agreement with any of its employees to purchase an 
individual annuity contract for such employee and that such an annuity 
contract would qualify for tax-exempt status under section 403(b) (1) of 
the Internal Revenue Code (26 U.S.C. § 403(b) (1) ). 

Very truly yours, 

Attorney General 

P.D. 12 139 

Number 40 May 19, 1972 

Honorable Allan R. McKinnon 

Chairman, Commerce and Labor Committee 

Senate Lobby 

State House 

Boston, Massachusetts 02133 

Dear Senator McKinnon: 

You have requested an opinion "as to the validity of our Massachu- 
setts Fair Trade Laws," and you specifically ask whether sections 
14A-D of Chapter 93 of the General Laws are unconstitutional. Since 
you state that there is presently pending before your Committee a bill to 
repeal the statute, I am pleased to set forth my views herein. Compare 
III Op. Atty. Gen'l 111, 112. 

In 1936, the Supreme Court of the United States, in reviewing an Il- 
linois Fair Trade Act identical to the Massachusetts Fair Trade Law, 
held that the Illinois Fair Trade Act was not unconstitutional. Old 
Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183. 
However, it must be noted that the Court carefully limited its holding by 

"We are not called upon to determine the case of one who 
has made his purchase in ignorance of the contractual restric- 
tion upon the selling price, but of a purchaser who has had 
definite information respecting such contractual restriction 
and who, with such knowledge, nevertheless proceeds will- 
fully to resell in disregard of it." Old Dearborn, supra, at 
193. (Emphasis supplied.) Since 1936, many states have de- 
clared unconstitutional those provisions of their fair trade 
laws which would seek to bind non-signing, non-contracting 
third parties. This trend has not gone unnoticed by our own 
Supreme Judicial Court. 

In the recent case of Black & Decker Manufacturing Co. 
v. Ann & Hope, Inc. of Danvers, 1972 Mass. Adv. Sh. 143, 
the Court differentiated between sections 14A and 14B of 
Chapter 93 of the General Laws. According to the Court, 
section 14A was designed to eliminate any question about the 
validity of price fixing contracts between immediate parties 
thereto, whereas section 14B was intended to permit the en- 
forcement of such price fixing contracts not only against the 
immediate parties thereto, but also against any person 
"whether the person ... is or is not a party to such con- 
tract." G. L. c. 93, § 14B. As such, the Court noted, section 
14B "represented a radical departure from the common law 
which permitted the enforcement of such contracts against 
the parties thereto . . . but not against persons who were not 
parties thereto." Black and Decker, supra, at 145, 146. How- 

140 P.D. 12 

ever, in Black and Decker, the Court did not rule on the con- 
stitutionality of sections 14A-D. In its own words, "the con- 
stitutionality of our Fair Trade Law as applied to noncon- 
tracting third parties has not been placed in issue in this case 
..." (Emphasis supplied.) Black and Decker, at 147, 148. 
And, the Court added, "we intimate no opinion on this ques- 
tion at this time." Black and Decker, at 148. In surveying the 
constitutional status of the various fair trade laws extant 
throughout the different states, the Court observed: 

"Indeed, at this point in time one source reports that out of 
the forty States which presently have such legislation, 
twenty-three have declared their acts unconstitutional as ap- 
plied to none ontr acting third parties, fifteen have declared 
theirs to be constitutional in this respect [as applied to non- 
contracting third parties] and two have not ruled on the ques- 
tion." Black & Decker, supra, at 148. (Emphasis supplied.) 

Although our Supreme Judicial Court declined to consider the issue of 
the constitutionality of § 14B of c. 93 in the Black & Decker case, it did 
issue the following admonition with respect to § 14B: 

"Because the Fair Trade Law represents such a departure 
as to nonsigners, and because it creates an exception to the 
general public policy of protecting the consuming public by 
prohibiting monopolies and requiring free and open price 
competition in the sale of commodities which are neither 
harmful nor critical in supply, it will be strictly interpreted 
and narrowly circumscribed." Black & Decker, supra at 146. 

Furthermore, to the extent that a fair trade act is considered to be in 
derogation of the general rule of common law that any person has the 
right to sell his property at any price that he and the purchaser may 
agree upon, said act must be strictly construed. 

Of the various grounds alleged for adjudging invalid "non-signer" 
provisions of fair trade laws, the three most frequently cited by various 
Courts have been: (1) that such provisions constitute an improper dele- 
gation of legislative power to private parties, (2) that such provisions of- 
fend "due process" in that there is a deprivation of property without 
due process of law, and (3) that such provisions are beyond the police 
power of the State. 

With respect to the concept of the police power of the state, it must be 
remembered that the right to carry on a legitimate business is a property 
right, and that that right cannot be taken away or abridged by an exer- 
cise of the police power, unless it appears: 

"First, that the interests of the public generally as disting- 
uished from those of a particular class, require such interfer- 
ence; and, second, that the means are reasonably necessary 
for the accomplishment of the purpose, and not unduly op- 
pressive upon individuals." Law ton v. Steele, 152 U.S. 133 at 

P.D. 12 14 

The right to contract is also clearly a property right and, as such, en- 
joys the protection of the "due process" clause and cannot be abridged 
by legislative fiat. The police power of a state is founded in public 
necessity — and that necessity must exist in order to justify its exercise. 
The mere assertion by a legislature that a statute promotes the public 
health, safety or welfare does not in itself bring that statute legitimately 
within the police power of a state. There must always be an obvious and 
real connection between the actual provisions of the police regulation 
and its avowed purpose and the regulation adopted must be reasonably 
adapted to accomplish the end sought to be attained. The Legislature 
has no power, under the guise of police regulations, arbitrarily to invade 
the personal rights and liberty of individual citizens, to interfere with 
private business or to impose unusual and unnecessary restrictions upon 
lawful occupations, or to invade property rights. 

Certainly a manufacturer has a property right in a trademark and that 
trademark should be and is protected as are other property rights. How- 
ever, if that manufacturer is to claim additional advantage, then he must 
look to the law emanating from the police power — and if the vantage 
sought is personal as distinguished from the general public then the 
police power may not properly be invoked. Moreover, while § 14B is 
ostensibly for the protection of the consuming public, it is difficult to 
perceive how an ultimate consumer of merchandise is in any way pro- 
tected or benefited if he is required to pay a higher price for a commod- 
ity than the retailer is willing to accept and which will return said retailer 
a reasonable profit. Although a trademark, and the good will which it 
represents, are property rights in the eyes of the law, a manufacturer is 
not entitled to additional protection, at the expense of the ultimate con- 
sumer, merely because his brand name or trademark is on the commod- 
ity sold. 

Based upon the foregoing consideration, it is my judgment at this time 
that § 14B violates the "due process" clause of the Fourteenth Amend- 
ment to the Constitution of the United States in that it deprives non- 
signing, non-contracting third parties of their property rights without due 
process of law. 

In addition, it can be cogently argued that § 14B constitutes an impro- 
per delegation of legislative power to private parties. We must under- 
stand the import of this statute and the authority granted thereunder to 
the trademark owner. He is given the privilege of placing the law in ef- 
fect and of amending or altering it at his will. He may do this without 
regard to the interest or welfare of the non-signer or the consumer who 
represents the public. The law does not provide for any standard or 
condition as to the necessity for the act. It gives to the trademark owner 
carte blanche authority to make that determination. He is not required 
to consult with anyone. There is no one to review his act. Thus, by vir- 
tue of the nonsigner clause the private party in effect may regulate prices 
as he sees fit. Since one manufacturer and one retailer may fix prices for 
all retailers, they have the complete power to fix prices regardless of 

142 P.D. 12 

anyone's interest but their own. In short, the question of whether or not 
§ 14B constitutes an improper delegation of legislative power to private 
parties with respect to price fixing simply compounds the constitutional 
problems raised by "due process" considerations elaborated upon ear- 
lier in this opinion. 

Very truly yours, 


Attorney General 

Number 41 May 26, 1972 

Honorable John F. Kehoe, Jr. 
Commissioner of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Commissioner Kehoe: 

You have requested my opinion whether an organization entitled the 
Boston Fireman's Relief Fund is qualified to receive a license to con- 
duct the game of beano pursuant to section 52 of Chapter 486 of the 
Acts of 1971. You have informed me that the organization in question 
has completed an application for a license to conduct the game of beano 
and that, on the application form, this organization (1) has stated that it 
it "is qualified to apply for a license and has been in existence at least 
five years prior to June 1, 1968," and (2) has described itself as a "vol- 
unteer non-profit fire company or similar organization furnishing a pub- 
lic ambulance service." 

It is well settled that "[i]t is not the province of [the Attorney 
General] to determine questions of fact ..." I Op. Atty. Gen. 275 
(1895). "His business [the Attorney General] is to deal with questions of 
law only." I Op. Atty. Gen. 462 (1897). Where the statutory language 
involved is unambiguous, then the operative factors are the pertinent 
factual findings of the administrative agency charged with administering 
the statute. 

Referring now to the language of c. 486, § 52, that section provides, in 
pertinent part: 

"[A]ny volunteer, nonprofit fire company or similar or- 
ganization furnishing public fire protection . . . may upon ap- 
plication to the commissioner be granted a license to conduct 
said game [beano] in a city or town which has voted to allow 
granting of licenses for the operation, holding or conducting 
of said game therein; . . . provided further, that such organi- 
zation has been in existence for at least five years im- 
mediately prior to June the first, nineteen hundred and sixty- 
In my opinion, the above-quoted statutory language is clear and un- 
ambiguous, especially with respect to the factual representations made 

by the Boston Firemen's Relief Fund on its application for a license to 
conduct the game of beano. It is not the function of the Attorney Gen- 
eral to determine on a case-by-case basis which organizations qualify for 
such a license and which do not. Rather, such factual determinations are 
primarily and fundamentally administrative decisions which are properly 
made, in the first instance, by you as the Commissioner of Public 

Very truly yours, 

Attorney General 

Number 42 May 26, 1972 

Honorable Harry P. Hogan 
Acting Chairman 
Board of Standards 
Department of Public Safety 
1010 Commonwealth Avenue 
Boston, Massachusetts 02215 

Dear Mr. Hogan: 

You have requested an opinion concerning the extent of the regula- 
tory jurisdiction of the Board of Standards as it pertains to which build- 
ings are covered by the Board of Standards Building Code. The regula- 
tions enacted by the Board pursuant to G. L. c. 143, § 3B, as amended 
by St. 1963, c. 691, apply to every "building, portion of a building or 
room which is a place of assembly or which is required to be provided 
with proper egresses or other means of escape." You ask whether the 
latter category of buildings is limited to those specified in G. L. c. 143, § 
21 as requiring proper egresses or other means of escape or whether that 
category can be more broadly interpreted to include all those buildings 
which the Board believes to involve the safety of large numbers of peo- 
ple. Upon consideration of the relevant statutory provisions, I conclude 
that the former interpretation is correct. 

While G. L. c. 143, § 3B does not specifically refer to G. L. c. 143, § 
21, it does specifically refer to any "building . . .which is required to be 
provided with proper egresses or other means of escape." Since this 
language is identical to that used in § 21, it should be uniformly inter- 
preted. Webster v. Board of Appeals of Reading, 349 Mass. 17 (1965). 
The buildings specified in § 21 fall into the following categories: 

(1) Any building in whole or in part, used as a public build- 
ing, hotel or family hotel, or as a factory, workshop, mercan- 
tile or other establishment, and which has accommodations 
for ten or more employees. 

(2) Clinic, hospital, sanatorium, convalescent or nursing 
home, infirmary maintained in a city or town, private infir- 
mary, rest home, charitable home for aged, a group resi- 

144 P.D. 12 

(3) A day care service for children, licensed by and under 
the supervision of the department of public health, building 
used or occupied for the purpose of providing group care 
therein by any children's foster care agency licensed by the 
department of public welfare under the provisions of section 
fifteen of chapter one hundred and nineteen, a grandstand, 
stadium, bleacher or arena. 

(4) An office building, dormitory, apartment house, board- 
ing house, lodging house or tenement house which has eight 
or more rooms above the second story, or in which ten or 
more persons are accommodated, lodge or reside above the 
second story, to which building sections fifteen to sixty, in- 
clusive, apply. 

Because these buildings are specifically described in section 21 which 
requires that they must be provided "with proper egresses or other 
means of escape," it is my opinion that the regulations promulgated by 
the Board pursuant to G. L. c. 143, § 3B apply only to such buildings 
and places of assembly. 

You express some concern that certain buildings wherein the safety of 
large numbers of people may be involved are not covered by § 21. In 
this regard, it should be borne in mind that since the legislative purpose 
behind the statute is the protection of human life against fire, its provi- 
sions should be liberally construed. Repucci v. Exchange Realty Co., 
321 Mass. 571. Of course, it may be that certain categories of buildings 
will not be subject to the Board's jurisdiction even though a liberal con- 
struction of the statute may be employed. The resolution of that prob- 
lem, however, lies with the General Court by way of enactment of re- 
medial legislation. 

Finally, you seek a clarification concerning the provisions of G. L. c. 
143, § 54. I note that section 54 deals with the regulatory authority of the 
Commissioner of Public Safety and does not concern your Board. I 
must, therefore, beg to be excused from answering the question. II Op. 
Atty. Gen'l 100. 

Very truly yours, 

Attorney General 

Number 43 May 26, 1972 

Honorable M. Joseph Stacey, Comptroller 
Executive Office for Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Mr. Stacey: 

You have requested my opinion whether, in view of the competitive 
bidding provisions of G. L. c. 149, §§ 44A-44L and c. 29, § 8A (and pre- 

P.D. 12 145 

sumably c. 30, § 39M), you may process for payment certain vouchers 
accompanying standard invoices submitted by the Department of Public 
Works (the Department) relating to reimbursement of moving and relo- 
cation expenses to relocated businesses displaced as a result of the 
Department's acquisition of real property for Federally-aided highway 
purposes. More specifically, you have posed several questions relating 
to the Department's alleged non-compliance with the competitive bid- 
ding laws in approving relocation estimates or bids obtained by business 
relocatees. Since your questions, in essence, turn on the necessity for 
compliance with the bidding laws, I direct my opinion to that problem. 

The relocation expenses vouchered include various categories of 
technical work performed according to specifications and costs ap- 
proved by the Department, in conformity with Department procedures 
set forth in its publication entitled, BUSINESS RELOCATION 
GUIDE, a copy of which was furnished to your office in November, 
1970 (the Guide). By way of illustration, you have set out in some detail 
the relocation voucher of a business relocatee, indicating the total 
amount of reimbursement sought and the various items of work and re- 
lated expenses. These items include the expenses in moving and reloca- 
ting a business, such as moving, packing, rigging, unpacking, plumbing, 
sheet metal, carpentry and electrical work. To substantiate this voucher 
the Department attached a form indicating the names and "bids" of 
three contractors obtained by the relocatee to perform this work in ac- 
cordance with specifications approved by the Department. The lowest 
bid was approved by the Department and the work was apparently per- 

The Guide sets out procedures for relocation assistance and payments 
to eligible businesses 1 displaced by highway projects administered by 
the Department with Federal assistance under the Highway Relocation 
Assistance Act, 23 U.S.C. §§ 501-511, added by Public Law 90-495, § 
30, August 23, 1968 (the Act). 

Paragraph 5 of the Guide, relating to obtaining estimates and bids by 
the relocatee, provides in pertinent part that the relocatee adhere to the 
following procedure: 

"Have three movers make estimates and/or three contrac- 
tors make firm bids based on the inventory and specifications 
[approved by the Department]. Moving costs must be sepa- 
rated from contractual costs, and signed bills of lading must 
be presented. Contractual work may be done by a single gen- 
eral contractor or broken down into several jobs. If the work 
is broken down into specific jobs, three bids must be pre- 
sented for each job . . . Each of the movers and/or contrac- 
tors must sign a copy of the inventory and specifications on 

' 23 U.S.C. § 512(4) defines the term "business" as any lawful activity conducted primarily (a) "for the purchase and 
resale, manufacture, processing, or marketing of products, commodities, or any other personal property:" (b) "for the 
sale of services to the public;" or (c) "by a nonprofit organization." 

146 P.D. 12 

which he is estimating or bidding, stating that he has read 

them and understands the scope of the work." 
Paragraph 8 of the Guide provides that no move may be made unless 
authorized by the Department "on the basis of the approved lowest 
competitive estimates and/or bids." The final amount approved for 
payment by the Department is based on "paid, eligible expenses, 
documented by receipted invoices from the movers and contractors who 
performed the work," including daily bills of lading from moving com- 

General Laws, c. 81, § 30 authorizes the Department to "make all 
contracts and agreements and to do all other things necessary to cooper- 
ate with the United States in the construction and maintenance of high- 
ways . . . and . . . make any agreements or contracts that may be re- 
quired to secure federal aid in the construction of highways . . . 
Further, the Department is authorized by § 7 J to pay "reasonable and 
necessary expenses, as approved by the . . . Department . . . not to ex- 
ceed . . . three thousand dollars in the case of a business concern ... or 
any increased amount or amounts for relocation of displaced occupants 
[of real property acquired by the Department by eminent domain, 
purchase or otherwise] which may hereafter be made available to the 
Department by any federal law . . . ' There is thus explicit legislative 
authorization for the Department to cooperate with the Federal govern- 
ment in securing federal aid in connection with the construction and 
maintenance of highways, including relocation of displaced businesses 
affected thereby. See Commission of Labor & Indus, v. Lawrence 
Housing AutWy. et. al., Mass. Adv. Sh. (1970) 1323; 1962 Op. Atty. 
Gen'l, 98, 99; 70/71 Op. Atty. Gen'l No. 51 (June 25, 1971). 

Furthermore, the Legislature has enacted from time to time statutes 
authorizing bond issues for an accelerated highway program. 2 In each 
such statute there is a provision which requires the Department to "ac- 
cept any federal funds available for [highway] projects." 

The relocation vouchers in question relate to Federally-aided state 
highway projects administered by the Department pursuant to agree- 
ments entered into with the Federal Highway Administration under 23 
U.S.C. § 1 10. Federal approval of these projects was based upon assur- 
ances by the Department that "fair and reasonable relocation and other 
payments" under relocation assistance programs to be administered by 
the Department would be afforded to displaced persons (including 
businesses) in accordance with Title 23 of the Federal- Aid Highways 
Act of 1966 and Highway Relocation Assistance Act of 1968. See 23 
U.S.C. § 502. 

Section 505 of the Act allows payment by the Department of "actual 
reasonable [moving] expenses" to displaced businesses upon applica- 
tions approved by the Department. Such moving expenses include the 
expenses of removal, reinstallation, and reestablishment of machinery, 
equipment, appliances, and other items, except certain improvements 

Si \ l >*2. c. 556; St, 1954, c. 403: St. 1956, c. 718. amended by St. 1958, c. *2 and St. i ( >M. c. 782; St. 1963, c. K22: St. 
1965. c 679: si 1967, c 616: St. 1969, c. 768. 

P.D. 12 14/ 

(23 CFR § 1.38, App. A, 17, 19) and are reimbursable to the Common- 
wealth to a large extent as a part of the cost of construction of a project 
under § 504 of the Act. 

There is no requirement under the Act (or regulations issued pursuant 
thereto) that the work to be performed in moving and relocating an eligi- 
ble business be awarded in accordance with the competitive bidding 
laws, c. 149, §§ 44A-44L and c. 30, § 39M, or with provisions requiring 
advertising for bids, c. 29, § 8A. The Federal Highway Administration 
in its Instructional Memorandum 80-1-71, published in 23 CFR App. A, 
requires only that the actual reasonable moving and related expenses 
paid to the owner of a displaced business accomplished by a commercial 
mover "be supported by receipted bills." 23 CFR App. A, 19. The pro- 
cedures set forth in the Guide relating to business relocation assistance 
and payments do not conflict with the requirements of the Federal gov- 
ernment under Title 23 or any regulations issued pursuant thereto. It 
must be presumed that these procedures were approved by the Federal 
Highway Administration. 23 U.S. C. §§ 106, 107, 1 10, 501-51 1; 23 CFR § 
1.1-1.38, App. A. 

In any event, the competitive bidding provisions of G. L. c. 149, §§ 
44A-44L, c. 30, § 39M and c. 29, § 8A do not apply to relocation assis- 
tance programs administered by the Department in Federally-aided 
highway projects. The Commonwealth is not a party to any contract in- 
volved in relocation of a business, nor does the Commonwealth 
"award" any such contract. The work may be carried out by the re- 
locatee on a self move basis, or be undertaken by one or more movers 
selected by the relocatee. If the work is undertaken by a mover, the con- 
tract is between the mover and relocatee. 

Moreover, invoking the provisions of the competitive bidding statutes 
in this instance might also impair the obligations of existing contracts be- 
tween the Department and the Federal Highway Administration, con- 
trary to the provisions of G. L. c. 81, § 30, requiring the Department to 
"do all . . . things necessary to cooperate" with the Federal Govern- 
ment to secure Federal aid in the construction of highways. 

I think it is clear that the Legislature intended that the Department be 
able to take advantage of any Federal assistance in highway construc- 
tion, including programs of Federal assistance in the relocation of dis- 
placed businesses. The application of State competitive bidding laws to 
relocation assistance programs in Federally-aided highway projects 
would tend to "thwart the Federal government's policy behind the con- 
tract under which a State instrumentality has accepted benefits." 
Commissioner of Labor & Indus, v. Boston Housing Authority, 345 
Mass. 406, 414; Commissioner of Labor & Indus, v. Lawrence Housing 
Athy., supra; 1962 Op. Atty. Gen'l, 98, 99. 

Consequently, it is my opinion that payment of properly vouchered 
moving and relocation expenses invoiced by the Department on account 
of Federally-aided highway purposes may be processed by your office 

148 P.D. 12 

without regard to the application of the competitive bidding provisions 
of G. L. c. 149, §§ 44A-44L, c. 29, § 8A or c. 30, § 39M. 

Very truly yours, 


Attorney General 

Number 44 May 26, 1972 

Honorable George G. Burke 
District Attorney for the 

Norfolk District 
Superior Court House 
Dedham, Massachusetts 

Dear Mr. District Attorney: 

I have your letter of May 2, 1972 in which you request my advice 
whether the provisions of G. L. c. 268, § 9A (the so-called "testimonial 
dinner law") apply to an employee of the Norfolk Probate Court who is 
an announced candidate for public office. In 1963, the then Attorney 
General rendered an opinion concerning the provisions of section 9A 
and its application to persons employed in the judicial branch of the 
government. The conclusions expressed in that opinion are sound, and 
they are as viable today as they were in 1963. 1 am enclosing a copy of 
the opinion for your information. 

With respect to your specific question, I note that the provisions of 
section 9A provide for a penalty for persons who sell, offer for sale, or 
accept payment for tickets or admissions to a testimonial dinner. The 
penalty does not run against the announced candidate or public em- 
ployee unless the candidate or employee is actually engaged in the sale 
of tickets or acceptance of payment. Your letter does not indicate that 
the unnamed employee of the Norfolk Probate Court engaged in con- 
duct which would bring him within the ambit of the statute. I therefore 
am unable to comply with your request for an opinion because your let- 
ter does not set forth sufficient facts upon which to base a conclusion. 
See III Op. Atty. Gen'l 425. 

In addition, the particular matter, which is the subject of your inquiry, 
is one which lies within the discretionary area. Because it is a matter 
calling for the exercise of discretion by a District Attorney, I must re- 
spectfully decline to answer. 

Very truly yours, 

Attorney General 

P.D. 12 149 

Number 45 June 19, 1972 

The Honorable C. Eliot Sands 
Commissioner of Probation 
206 New Court House 
Boston, Massachusetts 02108 

Dear Commissioner Sands: 

You have asked my opinion as to whether Chapter 276, Section 88 of 
the General Laws "authorizes the appointment of clerical assistants in 
the probation offices of the probate courts and their compensation to be 
paid by the counties." For the reasons discussed below, I answer your 
question in the affirmative. 

Chapter 276, Section 88 of the General Laws provides in pertinent 

"Every court appointing probation officers may employ 
such clerical assistance as it deems necessary . . . The com- 
pensation for such services, together with such other neces- 
sary expenses as the court shall incur in connection with such 
work, shall be paid by the county, upon vouchers approved 
by said court." 
Probate courts of the Commonwealth are authorized to appoint proba- 
tion officers pursuant to Section 83 of the same chapter, as amended by 
Chapter 771 of the Acts of 1969. That statute provides in pertinent part: 
"The superior court, the justices of the probate court for 
each county, other than for Barnstable, Nantucket, Hamp- 
shire and Franklin counties and the county of Dukes County, 
the chief justice of the municipal court of the city of Boston, 
subject to the approval of the associate justices thereof, and 
the justice of each other district court and of the Boston 
juvenile court, the Worcester juvenile court and the Spring- 
field juvenile court may appoint such male and female proba- 
tion officers as they may respectively from time to time deem 
necessary for their respective courts; provided, that the jus- 
tice of the probate court for Barnstable county shall appoint 
only one probation officer to serve the probate court of the 
counties of Barnstable and Nantucket and the county of 
Dukes County, and the justice of the probate court for 
Hampshire county shall appoint only one probation officer to 
serve the probate court of the counties of Hampshire and 
Franklin; . . ." 

Because the probate courts are authorized by Section 83 to appoint 
probation officers, they are authorized by Section 88 to employ clerical 
assistance. The compensation for such services . . . shall be paid by the 
county, upon vouchers approved by . . ." the appointing probate court. 

Very truly yours, 

Attorney General 

150 P.D. 12 



Banks and Loan Agencies. Division of: 

Payment, for services rendered, to ex-retired employee 

who waives pension retirement allowance 15 76 

Boards of Registration of Barbers and Hairdressers: 

Effect of Ch. 418 of Acts of 1971 upon registration 

statutes for barbers and hairdressers 7 57 

Board of Registration of Professional Engineers and Land 

Preparation of assessors maps for towns as land 
surveying 20 86 

Civil Service Commission: 

Statutory authority to reverse Director's decision re- 
garding validity of examination results 12 68 

Interpretation of "established by law"; appropriation 

by naming facility 17 80 

Part-time employees of Springfield Civil Center 18 82 

Civil Service and Registration. Division of: 

Conclusions relative to curriculum comparability for 

foreign schools of nursing 34 125 

Commerce and Labor Committee: 

Validity of Massachusetts Fair Trade Laws 40 139 

Commissioner of Probation: 

Appointment of Clerical Assistants in Probation Of- 
fices of probate courts: compensation 45 149 

Consumer's Council: 

Approval by D.P.U. of rates and tariffs to be charged 

by New England Telephone and Telegraph Co 22 91 

Corrections, Department of: 

Separation of prisoners condemned to death from other 

sentenced prisoners 8 60 

Transfer of prisoners from various correctional 
facilities to "penal facility" at Bridgewater: drug de- 
pendent persons 14 74 

Education. Department of: 

Authority to require that an applicant for a teaching 

certificate answer certain questions 2 38 

Legality of shared time and dual student enrollment 

arrangements 4 45 

Executive Council: 

Nomination of Paul G. Garrity to be Judge of the 

Housing Court of the City of Boston 24 95 

Executive Office for Administration and Finance: 

Proper payee of moving and relocation expense pay- 
ments resulting from eminent domain takings by 

D.P.W 35 127 

Jurisdiction over the installation and acceptance of wir- 

P.D. 12 151 


ing on projects supervised by Director of the Bureau of 
Building Construction in the Executive Office of 

Transportation and Construction 36 129 

Processing vouchers for payment relating to reim- 
bursement for moving and relocation expenses to 
businesses displaced through eminent domain 43 144 

Executive Office of Manpower Affairs: 

Deposit of Federal Emergency Employment Act funds 

in Unity Bank and Trust, a minority bank 10 64 

Coverage of employees of Lowell Technological Insti- 
tute Research foundation by unemployment insurance; 

classification 27 105 

Status of persons employed under the Emergency Em- 
ployment Act of 1971, Public Law 92-54 31 113 

Lowell Technological Institute Building Authority: 

Transfer of certain monies to General Fund in light of 

existing contractual obligations 21 87 

Massachusetts Commission Against Discrimination: 

Validity of various residency requirements for public 

housing 30 112 

Validity of certain Massachusetts laws regulating the 

employment of women in certain occupations 38 134 

Metropolitan District Commission: 

Authority of D.P.H. to order M.D.C. to fluoridate 

water supplied for domestic use in water district 25 96 

Natural Resources, Department of: 

Construction of phraseology: "interests described 

herein ,, in Gen. Laws. c. 131, § 40 32 120 

Norfolk County, District Attorney: 

Application of Gen. Laws c. 268, § 9A to an employee 

of the Norfolk Probate Court 44 148 

President, Massachusetts Senate: 

Constitutionality of H. 5982: authority of Director of 

Division of Marine Fisheries 9 62 

Public Health, Department of: 

Authority and obligation of M.D.C. to fluoridate pub- 
lic water supply available in water district 26 104 

Proposed operation by the Children's Cancer Research 
Foundation, Inc. of a cancer hospital for research and 
patient treatment 33 122 

Public Safety, Department of: 

Jurisdiction over construction of a "private gas utility*' 
of an above-ground tank to store liquified nature gas... 
Authority of Uniformed Branch of State Police to form 

collective bargaining unit 

Validity of certain provisions of the Building Regula- 
tions for Schoolhouses 

Definition of "fraternal organization" 

Qualification of Boston Firemen's Relief Fund to re- 









152 P.D. 12 


ceive a license to conduct the game of beano 41 142 

Extent of regulatory jurisdiction of the Board of Stand- 
ards as it pertains to buildings covered by the Board of 
Standards Building Code 42 143 

Public Works, Department of: 

Notification by State Tax Commission of amounts ap- 
portioned to cities and towns from Highway Fund; 

Registrar of Motor Vehicles: 

Upgrading of specific law enforcement positions 

Authority to terminate license suspensions where 
licensee obtains discharge in bankruptcy 

Secretary of State: 

Eligibility of persons between 18 and 21 who seek to 

register to vote in towns where they presently live 

Power to receive and approve articles of merger 

State Tax Commission: 

Commissioner of Education's order to withhold funds 
due to Boston and Springfield until racial imbalance 
plans submitted 5 51 

^Superintendent, Massachusetts Hospital School: 

Employee qualification for participation in tax- 
sheltered annuity program of St. 1963, c. 466 39 136 

Transportation and Construction, Department of: 

Application to Urban Mass Transportation Adminis- 
tration of U.S. Government for advance land acquisi- 
tion loan 28 108 

Treasurer and Receiver General: 

Credit for military service; retirement from position as 

correction officer at State Farm, Bridgewater 11 66