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

> ublic Document No. 12

Slje Qlommammmltlj of HaHBartjuBrtta

REPORT

OF THE

ATTORNEY GENERAL

FOR THE

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

REPORT

OF THE

ATTORNEY GENERAL

FOR THE

Year Ending June 30, 1972

BLICATION OF THIS DOCUMENT APPROVED BY ALFRED C. HOLLAND, STATE PURCHASING AGENT.

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

DEPARTMENT OF THE ATTORNEY GENERAL

Attorney General
ROBERT H. QUINN

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

STATEMENT OF APPROPRIATIONS AND EXPENDITURES

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

Appropriations

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

Expenditures

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

Income

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

Comptroller

P.D. 12

Sllje (Eomtmittuttaltt! of iMassachitBrttB

DEPARTMENT OF THE ATTORNEY GENERAL

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.

Introduction

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.

Administrative

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
general.

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-
ance.

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-
monwealth.

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
consumer.

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

Contracts

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
1972:

FISCAL PERIOD JULY 1, 1971
THROUGH JUNE 30, 1972

Period

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

TOTALS:

eceived

Approved

Rejected

350

346

359

350

219

213

200

196

307

274

262

260

210

205

281

275

298

292

390

383

310

Bonds

3460

Criminal

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-
ficer.

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
assemblies.

To assist its efforts in the education of the public, the Drug Abuse
Division publishes two information pamphlets: MASSACHUSETTS
DRUG LAWS and DRUG ABUSE REFERENCE CHART. In addi-
tion, a newsletter, TRACKS: DIRECTIONS IN THE FIELD OF
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 Td 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
officials.

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
taxes.

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
courts.

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
matters.

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

Education

State Colleges

Waterways Division

Water Resources Commission

Natural Resources

Welfare

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

$175,648.00

$133,307.98

177

91,209.38

325

11,472.46

7,869.83

1,878.47

73.38

15,029.56

219.56

2,635.94

14,491.12

7,500.00

1,843.51

699.00

13,216.31

8,746.91

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.

Veterans

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

APPENDIX

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

RESOLVES:

—Chapter 9. RESOLVE PROVIDING FOR AN INVESTIGATION BY
THE JUDICIAL COUNCIL RELATIVE TO PROVIDING FOR
CIVIL FORFEITURES AND CRIMINAL FINES FOR AIR AND
WATER POLLUTION.

—Chapter 22. RESOLVE PROVIDING FOR AN INVESTIGATION BY
THE JUDICIAL COUNCIL RELATIVE TO MAKING CERTAIN
AMENDMENTS TO THE VICTIMS OF VIOLENT CRIMES LAW.

—Chapter 28. RESOLVE PROVIDING FOR AN INVESTIGATION BY
THE JUDICIAL COUNCIL RELATIVE TO MAKING CERTAIN
CHANGES IN THE PROCEEDINGS IN CASES OF ALLEGED
UNFAIR EDUCATIONAL, HOUSING AND EMPLOYMENT
PRACTICES BY THE MASSCHUSETTS COMMISSION AGAINST
DISCRIMINATION, AND FURTHER REGULATING THE POW-
ERS OF SAID COMMISSION.

—Chapter 65. RESOLVE INCREASING THE SCOPE OF THE SPE-
CIAL COMMISSION ESTABLISHED TO MAKE AN INVESTIG-
ATION AND STUDY RELATIVE TO THE REGULATION OF
THE LOCATION AND OPERATION OF ELECTRIC UTILITY
GENERATION AND TRANSMISSION FACILITIES AND
OTHER MATTERS.

ACTS:
—Chapter 320. AN ACT PROVIDING FOR PENALTIES FOR VIOLA-
TIONS RELATING TO THE AWARDING OF CERTAIN PUBLIC
CONTRACTS.

—Chapter 359. AN ACT CLARIFYING THE PROCEDURE FOR OB-
JECTING TO AN AIR POLLUTION ORDER OF THE COMMIS-
SIONER OF PUBLIC HEALTH.

—Chapter 360. AN ACT AUTHORIZING THE APPOINTMENT AS
SPECIAL POLICE OFFICERS OF EMPLOYEES OF THE DIVI-
SION OF EMPLOYMENT SECURITY.

—Chapter 425. AN ACT REQUIRING THE STATE AUDITOR TO
AUDIT ACCOUNTS OF BOOKSTORES DOING BUSINESS ON
THE PROPERTY OF A STATE COLLEGE.

—Chapter 495. AN ACT PROVIDING FOR THE INDEMNIFICATION
OF LAW ENFORCEMENT OFFICERS FOR DAMAGES CAUSED
BY DOGS CARED FOR OR MAINTAINED BY THEM IN CON-
NECTION WITH THEIR OFFICIAL DUTIES.

—Chapter 506. AN ACT ESTABLISHING REQUIREMENTS FOR
LABELING HAZARDOUS SUBSTANCES.

P.D. 12 35

—Chapter 531. AN ACT FURTHER REGULATING THE MAKING
AND ACQUISITION OF LOANS AND ADVANCES INSURED
OR GUARANTEED.

—Chapter 531. (continued) . . . PURSUANT TO THE SERVICEMEN'S
READJUSTMENT ACT OF NINETEEN HUNDRED AND
FORTY-FOUR.

—Chapter 541. AN ACT PROVIDING FOR NOTICE TO THE AT-
TORNEY GENERAL OF CERTAIN UNCLAIMED BANK AC-
COUNTS.

—Chapter 544. AN ACT AUTHORIZING THE ATTORNEY GENERAL
TO SEEK WITHOUT NOTICE TEMPORARY RESTRAINING
ORDERS AGAINST UNFAIR TRADE PRACTICES.

—Chapter 784. AN ACT RELATIVE TO THE PROTECTION OF WET-
LANDS.

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-
tive.

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
Legislature.

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,
ROBERT H. QUINN

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-
firmative.

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-
tion.

Very truly yours,

ROBERT H. QUINN
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.

I. MINOR VOTERS IN GENERAL

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.

II. MINOR VOTERS WHO ARE STUDENTS

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.
Const.)

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.

III. SUMMARY

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,
ROBERT H. QUINN

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

Massachu

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,
797-798.

Very truly yours,
ROBERT H. QUINN

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
year.

"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,

ROBERT H. QUINN

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
debt."

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,
ROBERT H. QUINN

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,
541.

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-
tute.

Very truly yours,
ROBERT H. QUINN

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
law.

Very truly yours.

ROBERT H. QUINN

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,
ROBERT H. QUINN

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-
mine."

§ 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
followed.

Very truly yours,
ROBERT H. QUINN

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-
ment."

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-
tion.

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
years."

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,

ROBERT H. QUINN

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,

ROBERT H. QUINN

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
posed:

"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
105A.

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,

ROBERT H. QUINN

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,
48.

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,

ROBERT H. QUINN

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-
firmative.

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,
42-43.

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
91.

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,
ROBERT H. QUINN

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-
mative.

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-
tence:

'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
thereof."

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,

ROBERT H. QUINN

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-
tive.

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,
conclusive.

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,

ROBERT H. QUINN

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,
ROBERT H. QUINN

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
supplied.)
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,
provides:

"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,
ROBERT H. QUINN

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,
ROBERT H. QUINN

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
part:

"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;
and

"(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,
ROBERT H. QUINN

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-
tlement.

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
supplied.)

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,
ROBERT H. QUINN

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 —

Miles

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

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
provides:

"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-
pointment."

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,
ROBERT H. QUINN

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
flats."

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-
vides:

'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.
276.

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-
dation.

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
turn.

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,
ROBERT H. QUINN

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
District??

"(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,
ROBERT H. QUINN

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
compensation.

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,
ROBERT H. QUINN

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,
provides:

'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,
ROBERT H. QUINN

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,
ROBERT H. QUINN

Attorney General

Number 30 April 14, 1972

Mrs. Glendora M. Putnam, Chairman
Massachusetts Commission Against

Discrimination
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-
stitutional.

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,

ROBERT H. QUINN

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
omitted.)

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,
ROBERT H. QUINN

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
result.

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
questions.

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,

ROBERT H. QUINN

ATTORNEY GENERAL

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,
1971.

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-
lars."

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."

—

. _ . — _

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of the

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off lofc. 10S0 is that the act does

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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,

ROBERT H. QUINN

Attorney General

Number 34 May 1, 1972

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

Registration
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-
plied.)

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
anyone

"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
Commonwealth.

Very truly yours,

ROBERT H. QUINN

Attorney General

Number 35 May 2, 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 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,
ROBERT H. QUINN

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
supplied.)
On May 18, 1967, my predecessor rendered an opinion which con-
cluded:

"... [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,
222.

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,
137.

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,
ROBERT H. QUINN

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,

ROBERT H. QUINN

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,
ROBERT H. QUINN

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,
ROBERT H. QUINN

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
stating:

"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
137.

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,

ROBERT H. QUINN

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-
eight."
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
Safety.

Very truly yours,
ROBERT H. QUINN

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-
dence.

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,
ROBERT H. QUINN

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-
formed.

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-
panies.

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,

ROBERT H. QUINN

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,
ROBERT H. QUINN

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
part:

"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,
ROBERT H. QUINN

Attorney General

150 P.D. 12

INDEX TO OPINIONS

AGENCY AND TOPIC OPINION PA<

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
Surveyors:

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

AGENCY AND TOPIC OPINION PAGE

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-

110

133

152 P.D. 12

AGENCY AND TOPIC OPINION PAGE

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;
formula

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

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