Public Document No. 12
El^t Olommonuifaltlj of Haasartjuafttu
REPORT
OF THE
ATTORNEY GENERAL
FOR THE
Year Ending June 30, 1973
Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent.
IM-8.74.I04II6 Eslimaled Com Per Copy: SlAH
Public Document No. 12
^i^t (EommoMuipaltli of Hassarljunettu
REPORT
OF THE
ATTORNEY GENERAL
FOR THE
Year Ending June 30, 1973
Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent.
'^^-'-'■'■"""^ Estimated Cost Per Copy: $2.48
alt|p (Jommnniuealtl) of HUaaaarl^usettH
Boston, December 5, 1973
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, 1973.
Respectfully submitted,
Robert H. Quinn
Attorney General
P.D. 12
®I|e (Eammnnuiealtli of MasBacI)UBelta
DEPARTMENT OF THE ATTORNEY GENERAL
Nicholas A. Arenella
Kenneth Behar^
Lawrence T. Bench^
Mark I. Berson'-
W. Channing Beucler
Daniel T. Brosnahan
Howard J. Camuso
Charles E. Chase
Robert J. Condlin"
Paul K. Connolly, Jr.
George T. Contalonis
Richard E. Daly**
Danielle deBenedictis^
Richard C. Donovan^
Eleanor A. Dwyer'
George F. Foley
Charles M. Furcolo^
Robert Gallagher
David B. Gittlesohn
Herbert N. Goodwin'*
Joel S. Greenberg
Charles E. Inman
John J. Irwin. Jr.
Daniel J. Johnedis"
James X. Kenneally
James P. Kiernan
Daniel B. Kulak'«
John P. Larkin
Carter Lee
Arthur P. Loughlin
Attorney General
ROBERT H. QUINN
First Assistant Attorney General
Paul A. Good
Assistant Attorneys General
Alan G. Macdonald
Peter F. Macdonald
Charles M. MacPhee
Bernard J. Manning
Walter H. Mayo, III
James P. McCarthy
James D. McDaniel, Jr.
John F. McGarry*'
Gregor I. McGregor
David A. Mills
David G. Nagle, Jr.'^
David S. Nelson''^
Henry F. O'Connell
Lawrence J. O'Keefe
Timothy F. O'Leary'*
Hugh B. O'Malley
Terence P. O'Malley
Joseph A. Pellegrino'
Joel Pressman
Harvey F. Rowe
Edward F. Schwartz
Frederick J. Sheehan
George W. Spartichino
George A. Stella
Dennis M. Sullivan
Robert L. Surprenant
Roger W. Tippy'^
David B. Vigoda
John J. Ward
Andrew M. Wolfe
Christopher H. Worthington
Assistant Attorney General; Director Division of Public Charities
James J. Kelleher'"
Francis V. Hanify
P.D. 12
Assistant Attorneys General Assigned to Department of Public Works
Garrett M. Byrne
Richard R. Caples
Robert W. Coughlin"^
Thomas J. Crowley
John P. Davey
Samuel R. DeSimone
Dennis L. Ditelberg
Richard T. Dolan
Bernard F. Dwyer-
Stephen A. Ferguson
James J. Haroules
James F. Hart"
Richard W. Hynes
David A. Leone
Edward M. Mahoney^
Hugh Morgan
John H. O'Neil
Leo A. Reed
Paul E. Ryan
Herbert L. Schultz
Sidney Smookler
David S. Tobin
John J. Twomey
Assistant Attorneys General Assigned to
Metropolitan District Commission
Roger L. Aube George Jacobs
John F. Houton 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
Assitant Chief Clerk
Edward J. White
'Appointed July 1972
-Appointed August 1972
'Appointed September 1972
'Appointed October 1972
'Appointed November 1972
"Appointed February 1973
■Appointed March 1973
"Appointed June 1973
"Terminated July 1972
'"Retired July 1972
"Terminated August 1972
'■Terminated September 1972
'^Terminated January 1973
''Terminated February 1973
'■'Terminated March 1973
"'Terminated June 1973
P.D. 12 7
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For The Period
July 1, 1972 — June 30, 1973
Appropridlion.s
0810-0000 Administration $3,124,885.62
0810-6610 Anti-Trust Settlement — Concrete Pipe Case 47.980.48
0810-6613 Consumer Protection Research and Pilot Program.. 99.437.59
Organized Crime Investigation Training and Pre-
0810-6614 liminary Design of Technical Assistance Center 619.00
0810-6615 Organized Crime — Law Enforcement Training 32.478.21
0810-6616 Drug Training. Manual and Technical Assistance... 41.705.00
Organized Crime Unit. Phase 2. Intelligence Re-
0810-6617 trieval and Dissemination System 7.412.50
0810-6618 Training and Reference Materials 48.500.00
0810-6619 Organized Crime Unit 82.708.00
0810-6620 Drug Intelligence Information 35.000.00
0810-6621 Criminal Appellate Program 40.000.00
0811-6614 Attorney General Trust Fund 219.30
0811-6615 Organized Crime Technical Assistance Center 4,184.56
0821-0100 Settlement of Claims 199.500.00
$3,764,630.26
E.xpenclitiires
0810-0000 Administration $2,711,360.01
0810-6610 Anti-Trust Settlement — Concrete Pipe Case 47.980.48
0810-6613 Consumer Protection Research and Pilot Program.. 92.002.80
Organized Crime Investigation Training and Pre-
0810-6614 liminary Design of Technical Assistance Center 43.80
0810-6615 Organized Crime — Law Enforcement Training 32,432.18
0810-6616 Drug Training. Manual and Technical Assistance... 29.515.12
Organized Crime Unit. Phase 2. Intelligence Re-
0810-6617 trieval and Dissemination System 7.373.05
0810-6618 Training and Reference Materials 19,134.92
0810-6619 Organized Crime Unit 48,113.76
0810-6620 Drug Intelligence Information 26.183.12
0810-6621 Criminal Appellate Program 30.216.46
081 1-6614 Attorney General Trust Fund —
081I-66I5 Organized Crime Technical Assistance Center 4.184.56
0821-0100 Settlement of Claims 199.465.57
$3,248,005.83
Income
0801-40-01-40 Fees — Filing Reports $18,900.00
Charitable Organizations
0801-40-02-40 Fees— Registration 5,847.00
Charitable Organizations
0801-40-03-40 Fees — Professional Fund Raising 90.00
Council or Solicitor
0801-69-99-40 Miscellaneous 6,832.30
$31,669.30
Reimbursement for Services:
0801-62-02-40 Cost of Investigations 6,525.00
$38,194.30
P.D. 12
(lll)p QlnmmnumFaltl) of iUaBsarl^uBrttB
DEPARTMENT OF THE ATTORNEY GENERAL
Boston, December 5, 1973
To the Honorable Senate and House of Representatives:
Pursuant to the provisions of section 11 of chapter 12 of the General
Laws, as amended, 1 herewith submit my report.
INTRODUCTION
My fifth Annual Report as Attorney General of the Commonwealth of
Massachusetts, as required by G. L. c. 30 and 32 encompasses the fiscal
year from July 1, 1972 to June 30, 1973.
Of major significance during this reporting period was the enactment
of St. 1972 c. 781, an act establishing the Division of Environmental
Protection within the Department of the Attorney General. Although I
have had this Division functioning effectively for some time, its formal
creation will serve as notice of the seriousness with which my office
plans to pursue environmental quality in the Commonwealth. {See the
Division report infra.)
On other fronts, I have overseen a continuing effort to expand avail-
able services to Massachusetts citizens — from their roles as consumers
to individuals faced with an often confusing and unresponsive bureau-
cracy. I have endeavored to call upon the dual resources of information
programs and manpower to 'spread the word" to our citizens that the
office of the Attorney General will brook no unwarranted tampering
with their rights, liberties, and privileges.
The ever-present drug problem faced by most communities today has
also consumed much time and effort by my office. I believe that our first
responsibility in this area is education — not only of potential victims of
this particular scourge, but also of those whose duty it is to prevent its
spread and cure its pernicious effects. Cooperation from the federal
government, our sister states, and law enforcement agencies is beginning
to realize gains in this sphere which I trust serves the public interest.
If any occupation has "glamorous" aspects, while they may profitably
be singled out for their intrinsic worth, these aspects should never be
allowed to over-shadow the great value of the day-to-day competent per-
formances which I hope the public has learned to expect from the office
of the Attorney General.
Administrative
During the fiscal year, the Division prepared fifty formal opinions for
the signature of the Attorney General. In addition, eighty-six informal
opinions were issued, signed by various assistant attorneys general. Six
requests for legal opinions were withdrawn due to mootness. Fifteen
P.D. 12
formal opinions under the conflict of interest law (c. 268A of the Gen-
eral Laws) were issued, and a number of other requests were disposed
of informally by letter of conference.
While each of the opinions rendered was important, a few were of un-
usual interest. In two opinions (Nos. 11 and 32), the Attorney General
advised that citizenship, residency and domicile requirements for public
employment were unconstitutional. While such a holding had resulted in
a lower federal court case in New York, the opinion was given in ad-
vance of a definitive decision by the Supreme Court of the United
States. On June 23. 1973. the Supreme Court, in an 8 to 1 decision in the
case of Siigarman v. Dougall, affirmed the lower court ruling and held
that citizenship was an unconstitutional requirement for public employ-
ment.
In an opinion rendered early in the fiscal year (No. 2), the Attorney
General ruled that the Trustees of the University of Massachusetts had
the authority to enter into leases and tenancies at will without first ob-
taining the approval of certain legislative and executive officials as is re-
quired for most state leases and tenancies. The opinion was rejected by
the Comptroller of the Commonwealth on the advice of his own legal
counsel, and the Attorney General immediately authorized the Trustees
to file suit against the Comptroller in the Supreme Judicial Court. In that
suit, a justice of the court entered judgment for the Trustees, with the
assent of the Attorney General, even through the Comptroller person-
ally wished to defend the matter. Shortly afterwards, the Governor re-
quested an advisory opinion of all the justices to determine whether the
conclusions reached by the Attorney General were correct, and the jus-
tices rendered a unanimous, affirmative opinion on March 23, 1973.
In an opinion to the Acting Commissioner of Youth Services (No.
27), the Attorney General held that juveniles could not be committed to
or held at the Charles Street Jail. In an opinion to the House of Rep-
resentatives (No. 45), the Attorney General gave the first definitive con-
struction of the constitutional amendment (Art. 97 of the Articles of
Amendment) approved by the voters at the general election in
November 1972 concerning the environment. In another opinion to the
House (No. 47), the Attorney General determined that persons con-
victed of first degree murder could not be furloughed by the Department
of Correction.
Pursuant to its mandate to provide advisory services, the Division
continued to work during the fiscal year with various constitutional of-
ficers and state agencies to resolve legal problems before they reached
the stage of a formal controversy and required resolution by a formal
opinion or court litigation.
Litigation in which the Division was involved during the fiscal year
increased at a startling rate. Files on three hundred thirty-three cases of
a general nature were opened during the fiscal year, more than a fifty
percent increase over the preceding fiscal year. The number of suits in-
P.D. 12
volving welfare matters continued to increase at the same rate. At the
present time, four assistant attorneys general devote practically one
hundred percent of their time to the defense of welfare cases. Many of
these suits result from poor administration in the Department of Public
Welfare and an unwillingness on the part of officials and employees of
the Department to carry out existing judicial decrees and orders.
Significant litigation in which the Division was involved included
reorganization proceedings of both the Boston and Maine Railroad and
the Penn Central Railroad, the former pending in the United States Dis-
trict Court for Massachusetts and the latter pending in the United States
District Court for the Eastern District of Pennsylvania. Both cases are
also before the Interstate Commerce Commission. One Assistant Attor-
ney General was assigned practically full-time during the fiscal year to
try, first, the suit against the Board of Education brought by the Boston
School Committee involving the state racial imbalance law, and, second,
the federal desegregation suit brought by parents of black school chil-
dren in Boston against both the school committee and the state board. In
the latter case, the state board supported the plaintiffs' position. The ini-
tial racial imbalance suit resulted in subsequent proceedings in the
superior court, three appeals to the Supreme Judicial Court and several
requests for advisory opinions of the justices of the Supreme Judicial
Court. The Division participated fully in all of these cases and proceed-
ings.
Following a decision by the United States District Court for Massa-
chusetts invalidating the police patrolman's entrance examination ad-
ministered by the Division of Civil Service, several suits were brought
in both federal and state courts concerning issues arising from the deci-
sion. Those suits required immediate attention from the Division's staff,
and all were concluded successfully.
Early in the fiscal year, the Division defended a suit brought in the
Supreme Judicial Court against the Secretary of the Commonwealth in-
volving the constitutionality of the statute which accords first place on
an election ballot to incumbents. The suit was concluded by an opinion
of the full court which left the statutory preference intact. Several fed-
eral suits involving the same question are now pending. The Division
also defended an action brought in the United States District Court for
Massachusetts to require the Governor and the General Court to in-
crease the number of judges and provide new court-related facilities. An
appeal from a dismissal of that action is pending in the United States
Court of Appeals for the First Circuit.
In other federal litigation, the Division represented the Commissioner
of Correction in a suit challenging conditions at the Charles Street Jail
(the court ordered the jail closed by June 30. 1976). and the staff initiated
or participated in several civil actions in the United States District
Court for the District of Columbia seeking release of impounded federal
funds. In the latter cases, preliminary injunctions were granted ordering
release of the funds.
P.D. 12 11
The Division appeared in all of the courts of the Commonwealth dur-
ing the fiscal year, representing the Commonwealth and its agencies in a
broad spectrum of matters from appeals from the Appellate Tax Board
in the Supreme Judicial Court to appeals from the Civil Service
Commission in the state district courts. It is note-worthy that the latter
category of cases had increased in number over the previous fiscal year,
apparently as a result of the new review statute which permits review on
the basis of the record made before the Commission. The Division also
handled a greater than usual number of certiorari, mandamus and dec-
laratory judgment actions in both the Supreme Judicial and Superior
Courts.
Citizens Aid Bureau
The Citizens' Aid Bureau continues to assist people throughout the
Commonwealth who have problems of one kind or another. All too
often citizens are shuffled through the red tape of state government and
become increasingly frustrated. The Bureau functions as an information
center while at the same time it tries to assist individuals with their par-
ticular problems and make them aware of their rights. It is gratifying to
many to know that a Bureau exists in state government which is not only
effective in handling technical aspects of a problem but also one which is
responsive in listening to matters of a more personal nature.
It is often an individual's misconception that the Attorney General or
one of his assistants should serve as his private attorney. Since the At-
torney General is prohibited by statute from doing this, the Bureau must
often refer individuals to a private attorney, the referral service of the
Bar Association, or their local legal aid society. Copies of particular
laws are furnished upon request. Complaints or inquiries range from
welfare rights, rights of minors, and erroneous parking tickets, to
landlord-tenant situations and the problems of handicapped individuals.
The Bureau continues to maintain an excellent working rapport with
almost all agencies in state government. In this way, the Bureau can de-
liver the best services to the people of the Commonwealth. Recently,
the Bureau has developed a close working liaison with the Office for
Children in order to guarantee the rights of children. Additionally, the
Chief has continued to work with other agencies on a computerized
state-wide information and referral system with regional terminals. New
legislation to this end is being drafted, the effects of which are known to
those who have problems and who work with problems.
The work of our Spanish speaking liaison remains an important part of
the Bureau especially since the self-awareness of the Spanish speaking
community is daily increasing. Additionally, the student volunteer pro-
gram with the Harvard Divinity School and other colleges in the greater
Boston area as well as several high schools remains an integral part of
the Bureau. Many students from past years have gone on to social serv-
ice careers.
Making government more responsive to the needs of the citizens of
the Commonwealth remains the emphasis of the Bureau.
12 P.D. 12
Civil Rights And Liberties
One of the primary duties of the Civil Rights and Liberties Division is
to insure that the public is adequately informed with respect to its rights
and liberties under our system of government. In keeping with this re-
sponsibility, the Division was pleased to distribute 96,000 copies of the
first printing of the pamphlet "The Citizen and His Policeman — Recip-
rocal Rights and Duties At Times of Arrest," which the Division had
drafted with the assistance of other divisions within the department.
Among the distributees were high schools, colleges, state legislators,
law enforcement officials and agencies, members of the media, and pri-
vate citizens. The pamphlet has received widespread praise as a useful
publication for the benefit of both citizen and policeman alike.
The Division cooperated with the Massachusetts Bar Association in
the drafting of its pamphlet "Rights of the Arrested." The MBA, in in
its pamphlet, reprinted in part excerpts from the Attorney General's
pamphlet.
Following the police/minority community confrontations in New Bed-
ford in the summer of 1970, the Division, in conjunction with the Attor-
ney General's Advisory Committee on Civil Rights, and in consultation
with the Massachusetts Chiefs of Police Association, drafted a standard
procedure for the regulation of citizen complaints against policemen to
be implemented on a statewide basis. The Boston Police Department,
operating under a procedure similar to that drafted by this Division, has
done much to repair damaged relations between the minority com-
munities and the local police department. The Division's police griev-
ance procedure has met with varying degrees of success in those com-
munities which have implemented it. Citizens are using the procedure to
a considerable extent which may account for the sharp statewide in-
crease in the number of police "brutality" complaints processed by this
Division. Attorneys General from other states have consulted with this
Division for assistance in establishing a system similar to ours for the
redress of such complaints in their states.
The continuing problem of police/minority community relations in
several cities of Massachusetts necessitated the dispatch of members of
the Division to troubled cities to lend assistance and advice in order to
keep those problems below the boiling point. In most cases, it was the
physical presence of this Division which kept the lines of communica-
tion open between the community and the police.
One of the Division's major responsibilities continues to be the legal
representation of the Massachusetts Commission Against Discrimina-
tion (MCAD), the agency charged with the enforcement of the state's
anti-discrimination statutes. During the period covered by this report,
the Division made numerous court appearances on behalf of the MCAD
in cases involving, for the most part, discrimination based on race, sex,
religion, and national ancestry, and in the area of housing, employment,
and public accommodation.
P.D. 12 13
An interesting MCAD case handled by the Division is the case of
MCAD vs. East Chop Tennis Cliih. Inc. That case is currently on the
docket of the Supreme Judicial Court and the decision in that case will
have far reaching effect upon the ability of the Commission to enforce
the anti-discrimination laws of this Commonwealth. This Division, in
representing the MCAD on appeal, contends that the Commission must
be permitted to determine the limits of its own jurisdiction and that a
respondent charged with violation of the state's public accommodations
statute must first exhaust its administrative remedies before the Com-
mission prior to seeking judicial review of its claim to private club
status, which status is exempt from the provisions of the statute.
Further, the case may well lead to a new legal definition of public ac-
commodations within the scope of the Commonwealth's anti-
discrimination statutes.
Inasmuch as the Division has the continuing responsibility to ensure
that the civil rights and liberties guaranteed by our state and federal law
are vigorously and equitably enforced, it is constantly called upon by
citizens and public officials alike to deal with serious matters with re-
spect to those rights. Following are some of the matters in which the
Division became involved.
Throughout the year, there were increased requests for assistance
from married women who systematically had been denied the right to
vote using their maiden names by local election officials. It was the con-
tention of this Division that the present Massachusetts statutes permit
married women to vote using their maiden names. This contention was
submitted by way of an informal opinion to various local election offi-
cials. In many such cases, local election officials reversed their opinions
and permitted married women to vote using their maiden names when
desired.
Because of the ambiguity in our law in this respect, the Division
drafted and submitted legislation which would clearly define married
women's rights in this area. It is our understanding, at this writing, that
our bill or one similar to it is still under the consideration of the General
Court.
Despite the Attorney General's opinion of July 21. 1971 to the Secre-
tary of State in which it was stated as a general principle that a student
over eighteen years of age, whether emancipated or unemancipated, had
a right to choose his own domicile for voting purposes, one of our major
metropolitan cities continues to block the attempts of students to regis-
ter for voting. The gravity of such an infringement of fundamental rights
requires continued involvement of this Division to the degree necessary
to ensure the free exercise of individual rights.
On May 2, 1973, the Attorney General, in response to a request from
the Chairman of the MCAD, rendered an opinion upholding the con-
stitutionality of Chapter 786 of the Acts of 1972, the so-called "anti-
blockbusting" statute. The Division assisted in the drafting of this im-
portant opinion.
14 P.D. 12
The Division also filed its perennial legislation seeking to prohibit
drive-in movie theaters from portraying certain sexual conduct in such a
manner that its exhibition would be easily visible from public ways or
places of public accommodation. The bill met its usual fate, dying in
committee. Hopefully, however, in view of recent Supreme Court deci-
sions with respect to obscenity and pornography, the bill might receive
reconsideration.
On June 21, 1973, the United States Supreme Court in the landmark
case of Miller v. California, 413 U.S. 15 (1973), established a new tripar-
tite test for the trier of facts in obscenity cases. In departing from the
test established in the case of Memoirs v. Massachusetts, 383 U.S. 413
(1966), the court said that in determining whether objectionable material
is obscene and, therefore, is not to be afforded constitutional protection,
the trier of facts must establish the existance of the following three ele-
ments:
1. whether the average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to
the prurient interest in sex;
2. whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and
3. whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
It is interesting to note with regard to these new guidelines that the
contemporary community standards to be applied may now be those of
the forum state and not some "non-existent" national standard as be-
fore. Moreover, the earlier element of "utterly without redeeming social
value" articulated in Memoirs is now rejected as a constitutional stan-
dard.
By this opinion, it is apparent that the court is in fact inviting the
states to enact new statutes which would be more specific in nature than
those formerly used to regulate obscene materials. In this connection,
the Division is, at this writing, drafting revisions of our state obscenity
statutes to bring them within the purview of the Miller opinion.
Consumer Protection
The Consumer Protection Division continues to expand operationally.
Between July 1, 1972 and June 30, 1973, the total number of consumer
complaints placed under investigation by the Division, — which in-
cludes the Volunteer Division — totalled 12,805. During this period
7,523 complaints were recorded and investigated by Division branch of-
fices in seven locations throughout the state. Savings and refunds from
these cases totalled $876,606.00
Incoming telephone calls to the Division have averaged approximately
500-600 daily, with a constant flow of "walk-ins" seeking advice and
consultation, and registering complaints. New office procedures have
been implemented in various areas to economize on time, upgrade effi-
P.D. 12 15
ciency and provide an even greater service to the consuming public.
The umbrella of consumer protection in Massachusetts continues to
increase in coverage. In addition to the Consumer Protection Division
and branch offices, consumer groups on the local level have been
formed under the guidance and direction of staff members from the At-
torney General's office. In Hyannis. for example, the Cape Cod Chap-
ter of the American Association of Retired Persons organized a con-
sumer desk at the Merchants Bank and Trust. The Consumer Assis-
tance Desk, as it is known, comprises approximately forty volunteers
who process and investigate consumer complaints from Cape Cod resi-
dents. This group, which has completed its first year of operation, is
considered a model group and has achieved remarkable results. In Fall
River, local groups banded together to form a Consumer Affairs Office
under the guidance of the Attorney General and sponsored by the
Mayor of Fall River, local city officials and concerned citizens. This of-
fice is now working in direct conjunction with the Attorney General's
New Bedford office. This is the beginning of local community participa-
tion in the field of consumer protection and consumer advisory services
and assistance in Massachusetts. As more offices develop and are prop-
erly established, Massachusetts will have a network of consumer protec-
tion.
Education is a prime factor in the Attorney General's approach to
helping the Massachusetts consumer. Radio, TV and public speaking
engagements are used to reach the public. News items, press releases
and consumer news columns appear constantly, and consumer informa-
tion leaflets and copies of consumer laws are distributed by the
thousands to the public. Developments continue on the high school
level, and staff member visits to student groups are on the increase.
Meetings between the business community and staff members of the
Division are frequently scheduled for the purpose of discussing advertis-
ing, consumer laws, customer complaint areas and customer relations.
New procedures are hammered out in connection with "in store" opera-
tions and new approaches to customer problems. These meetings have
been well received, productive, and have clearly demonstrated the need
for upgrading and making new changes in the store structure.
While the Division continued to involve itself in resolving a growing
volume of complaints from individual citizens, it also initiated a policy of
challenging rate increase requests made by the Commonwealth's utility
companies before the Department of Public Utilities. The involvement
of the Division in these cases resulted in the saving of millions of dollars
by Massachusetts' consumers.
The Division opposed the forty-two million dollar increase requested
by the Boston Edison Company. Months of preparation went into the
twenty-eight days of trial before the Department of Public Utilities with
the result of a saving of thirty-four million dollars for affected consum-
ers. The Division appealed the eighteen million dollar increase allowed
by the D.P.U. to the Supreme Judicial Court.
16 P.D. 12
The next utility company to feel the Division's muscle was the New
England Telephone and Telegraph Company which requested a rate in-
crease of 122 million dollars. Because of the Division's intervention be-
fore the D.P.U., this request was limited to 66 million dollars. Other
utility companies which were requesting rate increase from the D.P.U.
and which became subject to the scrutiny and intervention of the Divi-
sion were Boston Gas Co., Western Massachusetts Electric Co., Brock-
ton Edison Co., Fall River Gas Co., Lowell Gas Co., New Bedford
Gas and Electric Co., Cape Cod Gas Company, Brockton Taunton Gas
Co., and Springfield Gas and Electric Co.
The Division continued to achieve noteworthy results under the Con-
sumer Protection Act, G. L. c. 93A. A significant development was the
decision handed down in the case of Commomvealth v. Decotis. The
court held that the respondent was violating the Consumer Protection
Act by collecting fees from tenants in their mobile home park when the
tenants sold a mobile home located on real estate leased from the re-
spondent. As a follow-up to this case, the Division fiied a bill of rights
for mobile home owners with the legislature. This legislation is designed
to protect residents of mobile home parks so as to permit them to sell
their mobile home without having to pay a resale fee, to have free choice
in selecting the dealer from whom they would purchase fuel, gas and
other accessories, and to prohibit eviction except for just causes.
Numerous other court actions were pursued under G. L. c. 93A.
These cases involved a company distributing milk in shortweight
throughout the Commonwealth, an individual who advertised that he
would award a free gift without disclosing that the delivery and retention
of the gift was contingent upon certain conditions, the failure of certain
companies to have a three day rescission clause in certain contracts, the
use of bait and switch advertising, and the practice of certain automobile
dealers who were turning back odometers or selling motor vehicles
which had been used as rental vehicles without disclosing the prior use.
The Division took criminal action when necessary. In one case an au-
tomobile dealer was fined five thousand dollars for the sale of rental ve-
hicles to ten consumers without proper disclosure. Other criminal cases
involved contractors who failed to include the three day rescission
statement in their contracts, a seller of automotive lubricating oil which
did not conform with the viscosity classification marked on the con-
tainer, automobile dealers who turned back odometers, and a travel
agency which took money from consumers under the false pretense of
obtaining airline tickets. In the latter case the court continued the case
for disposition on the condition that the defendant would make restitu-
tion. Over three thousand dollars was returned to consumers in this
fashion.
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
P.D. 12
17
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 cor-
rectness of legal form. Conferences with officials from more than 80
state agencies are frequently scheduled to deal with questions relative to
state contracts. In addition to litigation, the Division has attended con-
ferences with various department heads and officials, investigated the
factual background of several contract disputes, and researches statute
and case law. The following is a summary of the case load during fiscal
year 1973.
Period
July 1-July 31. 1972
August I -September 26. 1972
September :6-Dec. 5, 1972
December 6-January 30, 1973
January 31 -May 5,19733
May 5-June 1. 1973
June 2-June 30, 1973
Received
Approved
Re
jected
313
306
7
674
632
42
651
641
10
453
440
13
611
610
1 340
1286
54
624
624
Bonds
TOTALS:
4,666
4.539
126
Cases on hand July 1, 1972:
Employer tax cases:
Employee overpayment fraud cases:
Supreme Judicial Court Cases —
On appeal from Board/Review decision):
421
309
730
Additional Referrals:
Employer tax cases:
Employee overpayment fraud cases:
Supreme Judicial Court Cases —
(On appeal from Board/Review decision):
267
189
457
Total Cases Darini; Fiscal Year.
1187
Cases Closed:
Employer tax cases:
1. Paid in full
2. Uncollectible
3. Partial Payment, Balance uncollectible
4. Actions transferred to Bankruptcy
171
66
9
11
7
Employee overpayment fraud cases:
1. Paid in full
2. Returned to Claims Investigation
Department for further
Administrative action
Cases Remaining on hand June 30, 1973:
Employer tax cases:
Employee overpayment fraud cases:
Supreme Judicial Court Cases —
(On appeal from Board/Review decision):
93
74
4
78
595
420
.016
$470,488.61
18 P.D. 12
Total Monies Collected:
From Employers — $364,435.41
From Employees — $106,053.20
Criminal Complaints Brought:
Larceny Cases: 37 Complaints, involving 5/6 Counts against 37 employees re
fraudulent benefits totaling $33,953.00.
Tax Cases: 40 Complaints, involving 262 Counts against 35 employers re de-
linquent taxes totaling $90,636.03.
Criminal
The Criminal Division continued to operate on three levels of
specialization: Trials, Appeals, and the Organized Crime Section.
The Trial Section, whose primary function is directed toward the in-
vestigation and prosecution of criminal activities within the Common-
wealth, instituted a number of inquiries into matters of wide-spread con-
cern among law enforcement authorities. Attention was focused upon
certain fraudulent practices engaged in by agents selling automobile in-
surance to victims classified as "assigned risks." Not only would the
creditors receive unwarranted insurance coverage in addition to their
mandatory policies, the agents would include "roll-on" subscriptions to
automobile clubs at exhorbitant rates. On many occasions, the transac-
tions would not be disclosed to the client and the premiums never paid
to the insurer. Indictments have been returned in many of these cases,
and the matters are pending trial.
The financial community was subjected to a probe by state detectives
and investigative accountants assigned to the Division to examine ir-
regularities in certain banking institutions. As a result of this inquiry, an
embezzlement scheme was uncovered which disclosed that millions of
dollars had been syphoned off from accounts at a Brighton savings bank.
The Attorney General, acting in his capacity as Chief Law Enforce-
ment Officer of the Commonwealth, coordinated efforts among the dis-
trict attorneys and prosecutors from neighboring states in an attempt to
solve a series of murders of young women. After a clearing house for
relevant information had been established, a cooperative effort resulted
in additional leads and finally culminated in three indictments brought
against one individual charging him with the killing of three of the vic-
tims. The trial is presently pending.
In a continuing effort to combat welfare frauds, the Division was re-
sponsible for the indictment of the Director of the Revere Welfare Of-
fice. A Suffolk County jury found him guilty of illegally issuing authori-
zation for the expenditure of funds designated for welfare purposes.
In the first state income tax evasion prosecution ever brought in the
Commonwealth, a North Shore bookie was sentenced to prison and or-
dered to pay state income taxes on the money he obtained from illegal ,
wagering. |
An employee of the Department of Mental Health was convicted of I
larceny of $26,000 from that state agency. The disposition of the case i
resulted in the immediate recovery of $10,000, the remainder to be re-
paid by the thief over a three-year period.
P.D. 12 19
Realizing that transactions involving stolen securities constitute a lu-
crative business for the underworld, investigators from the Division se-
cured evidence which resulted in conspiracy indictments involving bond
frauds. A number of individuals pled guilty in this $80,000 scheme de-
signed to defraud the public.
This year the Appellate Section had its case load tremendously esca-
lated as a consequence of court decisions which expanded previous con-
stitutional interpretations of prisoner's rights. In addition to the liberali-
zation by the judiciary of procedural and substantive rules regarding
prison operations, a series of large-scale disruptions in the state's prison
system resulted in an unprecedented increase in the number of extraor-
dinary writs litigated in both state and federal courts. Prison civil rights
actions customarily seeking both injunctive relief and actual monetary
damages against correction officials measured in the millions of dollars.
Most cases were terminated before the trial stage, and no monetary
charges have been awarded to any prisoner.
Division attorneys rendered legal advice to the Departments of Men-
tal Health. Corrections, the Massachusetts Parole Board and other state
agencies, and assisted them in constructing operational rules and regula-
tions that would conform to recent constitutional mandates promulgated
by the United States Supreme Court.
The nation's highest tribunal twice granted certiorari upon the
Commonwealth's petition in two cases decided adversely to the
Division's position by the First Circuit Court of Appeals. The United
States Supreme Court scheduled a hearing in the fall to determine
whether a Massachusetts statute demanding that the flag be treated with
respect is unconstitutionally vague and overbroad. The Supreme Court
will also determine the validity of a murder conviction where both the
victim and the accused were members of an organized crime syndicate.
The Court refused to grant a defendant's petition for certiorari wherein
he sought to challenge the constitutionality of the Massachusetts Statu-
tory Rape Law.
In addition to the prosecution of criminal matters and the work of the
Appellate Section, the Division also engages in high level administrative
duties. Staff attorneys were responsible for the annual compilation of
changes in the criminal law, which when printed, are distributed to all
police departments throughout the Commonwealth. Assistants reviewed
the legal adequacy of both demands for the extradition of fugitives from
other jurisdictions and the Commonwealth's rendition requests to return
those to justice who had fled Massachusetts.
This agency continued in its effort to maintain a close relationship
with the public by sending speakers to educational institutions, service
clubs, citizens groups, police gatherings and civic organizations in order
to create an awareness about recent developments in the area of criminal
law.
20 P.D. 12
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 lead 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 was established in accordance with a
mandate of Chapter 889 of the Acts of 1969, the "Drug Rehabilitation
Act" sponsored by Attorney General Quinn. 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 administrators, and members of other related disciplines. To date
there have been over 1500 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 receive three hours
of academic credit for successful completion of the course. Fourteen
colleges throughout the Commonwealth have granted college credit for
the course.
Special emphasis was given to field testing and evaluation of con-
trolled substances. Each police department represented received a spe-
cial drug testing kit. Distribution of these kits was made possible
through a Law Enforcement Assistance Administration (LEA A) grant
obtained by the Drug Abuse Division. The opportunity for chemically
analyzing suspected substances at the local level, immediately following
confiscation, is viewed as a significant breakthrough in criminal law en-
forcement technique.
In fiscal 1972-73, the Drug Abuse Division was awarded an LEAA
grant to study the feasibility of setting up a statewide drug intelligence
system. After interviews with state and local law enforcement person-
nel, computer experts, and other people knowledgeable in the in-
telligence field, the study concluded that a need does exist in Massachu-
setts to create an intelligence sharing network. Therefore, a new Drug
Intelligence Unit is presently being established in the office of the At-
torney General. The staff has already received the cooperation and en-
thusiasm of police departments throughout the Commonwealth.
Another LEAA grant is funding the preparation of a police training
manual for use during the drug school and as a reference source for
police officials during drug-related activities.
In April 1973, the Division conducted a three day conference on drugs
in cooperation with the Massachusetts Narcotic Enforcement Officers
P.D. 12 21
Association. Three hundred people attended the conference, including
law enforcement officials, teachers, legislators, and mental health per-
sonnel.
The Division also has a statewide education program for school and
community groups. The staff participates in an active speaking program
whereby members conduct lectures and discussion groups at meetings of
civic and community groups, professional organizations, and school as-
semblies.
To assist in its efforts to educate the public, the Division publishes
two pamphlets: "Massachusetts Drug Laws'' and the "Drug Abuse
Reference Chart." In addition, a newsletter, "Tracks: Directions In
The Field Of Drug Abuse" is distributed to doctors, pharmacists, police
officials and interested citizens throughout the Commonwealth.
In November 1971. the Governor signed the Massachusetts Con-
trolled Substances Act, a comprehensive reform of drug laws, effective
.luly I, 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 abuse laws
into conformity with federal drug laws.
Eminent Domain
The Eminent Domain Division is responsible for handling all litigation
involving land to which the Commonwealth is a party. The Division acts
as legal counsel to all agencies of the Commonwealth in: (1) the acquisi-
tion of land, whether the transfer is voluntary or involuntary; (2) the dis-
posal of land by the Commonwealth; and (3) all matters before the land
court to which the Commonwealth is a party. In addition, the Division
is responsible for the processing and disposing of all land damage actions
filed against the Commonwealth under Chapter 79 of the General Laws.
The Division has the added responsibility of handling cases arising out
of the application of Chapter 130 of the General Laws, and other stat-
utes related to conservation and water pollution wherein the Common-
wealth claims damages.
Under the above-mentioned chapters, the Division acts as attorney
for state agencies, such as the Department of Public Works, the Met-
ropolitan District Commission, the Board of Trustees of State Colleges,
the University of Massachusetts, Southeastern Massachusetts Univer-
sity, the Department of Natural Resources, the Water Resources Com-
mission, and community colleges in connection with matters relating to
real estate.
The bulk of the Division's efforts are devoted to land damage actions
resulting from the exercise of the Commonwealth's power of eminent
22 P.D. 12
domain. This power is initiated when it becomes necessary to take pri-
vate property to complete a public purpose project. There are many
phases to the proper exercise of this power, but the Division becomes
involved only when the former landowner in the proceeding is not satis-
fied with the offer made by the taking agency and files a petition in the
appropriate superior court. At this point the Attorney GeneraKs Office
takes full control and responsibility.
The Division's governing directive is to achieve a just and reasonable
solution to a dispute, in the shortest period of time, while, at the same
time, making a conscious effort not to sacrifice competence for speed.
The philosophy behind the approach is to avoid undue delay which leads
to inconvenience and aggravation. To this end, procedures have been
formulated within the Division to insure that all cases are thoroughly
analyzed, prepared and ready for trial at the earliest possible moment.
Fiscal year 1973 began with 1,173 cases pending. During the year, 193
new petitions were filed, which brought the total case load to 1,366. Of
the 1,366 cases, 179 have been disposed of by settlement or trial leaving
1,187 cases pending.
At the present time, the Division is handling one case of major impor-
tance in the United States Supreme Court, United States v. Maine, et
al. The United States brought suit in 1968 against the states of Maine,
New Hampshire, Massachusetts, Rhode Island, New York, New Jer-
sey, Delaware, Maryland, Virginia, North Carolina, South Carolina,
Georgia, and Florida, which was later severed, claiming that the federal
government rather than the states held ownership of the Outer Conti-
nental Shelf and its resources. Last March, hearings before the Special
Master, the Honorable Albert Branson Maris, Senior United States Cir-
cuit Judge, were concluded. Briefs have been recently filed by all parties
and a decision by the Special Master on the facts of the case is expected
some time in mid- 1974. The Supreme Court should make a final ruling
on the case in the October Term, 1974.
In May this office filed a motion for a preliminary injunction against
the United States and the Geological Survey, to prevent core drilling off
the coast of Massachusetts. In a memorandum decision, the Supreme
Court turned down the request for the injunction. However, the request
was mooted by the action of the United States in cancelling all plans to
make core drillings before the Court had an opportunity to rule on the
motion.
Employment Security
The Employment Security Division works closely with the Massachu-
setts Division of Employment Security. It prosecutes employers who
are delinquent in paying employment security taxes and employees who
file and collect on fraudulent claims for unemployment benefits. The
vigorous prosecutions made by this Division have resulted in the recov-
ery of substantial sums of money for the Commonwealth.
P.D. 12 23
During the fiscal year ending June 30, 1973, 1 ,187 cases were handled
by this Division. 730 cases were on hand at the start of the year and 457
new cases were received during the year, of which 267 were employer
tax cases. /(S'9 were fraudulent claims cases, and / was an appeal to the
Supreme Judicial Court.
171 cases were closed during the fiscal year, of which 93 were em-
ployer tax cases and 78 were fraudulent claims cases, leaving a balance
of 1 ,016 cases on hand at the end of the fiscal year. Monies collected
totaled $364,435.41 from employer tax cases and $106,053.20 from the
fraudulent claims cases, making a total recovery of $470,488.61 for the
Commonwealth.
The Division is charged with the duty of pursuing those individuals
found not complying with the Employment Security Law. During this
fiscal year the Division waged an energetic and forceful program in
handling all cases referred to the Division for criminal prosecution. At
the same time, the Attorney General's office has maintained a policy of
giving the erring individual, corporation or business entity every oppor-
tunity to make settlement out of court. Concentrated office conferences
were conducted with the principals involved to determine whether or not
criminal proceedings should be initiated. Criminal prosecutions were
taken against those failing to show cooperation with the terms of agree-
ment made by this office, but only after they had received an opportu-
nity to discuss the matter thoroughly. During this fiscal year the Divi-
sion brought 40 complaints against thirty-five employers, involving 262
counts of tax evasion and totaling $90,636.03 in monies due the Com-
monwealth. Complaints involving 516 counts of larceny were brought
against thirty-seven individuals found collecting unemployment benefits
under fraudulent claims totaling $33,953.00 in monies taken from the
Commonwealth.
At present and during the span of this fiscal year some 63 cases ripe
for criminal prosecution have not been processed for lack of clerical
help, and in some of these tax cases the statute of limitations is running.
A likely group of the fraudulent claims cases also have become ripe for
criminal prosecution this fiscal year and need to be processed for court
action. Prosecution of these cases would result in several hundreds of
thousands of dollars to the Commonwealth when concluded.
In addition, there is presently pending in the Supreme Judicial Court,
a case in which the question raised is as to what constitutes voluntary
leaving of work under Section 25 (e) (1) of Chapter 151 A, General
Laws. There is also pending, in the same court, an action brought by the
Massachusetts Bar Association which raises questions such as what
constitutes the practice of law, and to what extent persons representing
claimants or employers under Chapter 151 A should be required to be
members of the bar. During this fiscal period, there were a number of
cases brought in Federal District Court against the Director of the Mas-
sachusetts [3ivison of Employment Security, charging that the regula-
tions established by the Department of Labor and followed by the state
24 P.D. 12
division of Employment Security discriminated against women. The
matters were adjusted to the satisfaction of the parties. At present, we
have cases pending in the federal court which raise questions of due
process in connection with Division procedures.
Investigations made by this Division have greatly increased and now
include those conducted jointly with the Criminal Division of the Attor-
ney GeneraFs office for the purpose of uncovering collusion and
conspiracy to commit larceny by certain personnel of the state Division
of Employment Security and claimants filing fraudulent claims at the
employment offices located in Brockton and Hyannis. To date, the
Brockton and Hyannis investigations have culminated in criminal action
being initiated in the respective district courts having jurisdiction, and
the Brockton matter has been disposed of to the satisfaction of the state
Division of Employment Security. Due to inadequate service received
on default warrants relating to criminal matters pending before various
courts of the Commonwealth, a special police authority was requested
and granted to our investigator. After undertaking necessary training,
the investigator will be in a position to service the numerous default
warrants and help expedite disposition of the criminal matters now pend-
ing such service.
It should be noted that due to increased programs, and more prosecu-
tions resulting in more convictions, substantial sums of money were col-
lected; employers and employees were made aware of the penalties and
restrictions imposed by the courts; and a marked decrease in the number
of overall violations has resulted in areas where the Division has prose-
cuted.
Environmental Protection
The fiscal year saw the enactment of a statute formally creating this
Division and expanding and clarifying the authority of the Attorney
General to protect the environment (St. 1972, c. 781, § 1, adding G. L.
c. 12, § IID). This legislation affirms the authority of the Attorney Gen-
eral to commence statutory enforcement actions on his own initiative
just as he traditionally commenced public nuisance actions. In addition
to this broadened power to enforce state statutes, the Attorney General
is now given authority to enforce local by-laws and ordinances which
protect against damage to the environment, and to investigate the ad-
ministration of environmental laws by any state agency or political sub-
division, making such recommendations as are appropriate to the Gov-
ernor and the legislature.
With this added responsibility has come a greater opportunity to con-
tribute to environmental quality. Accordingly, the year saw a substantial
increase in environmental court enforcement, especially in the federal
courts, and an increased advisory role in agency regulation-making and
legislative enactments.
Suit was filed in the United States District Court for Massachusetts in
November 1972 to compel the federal Environmental Protection Agency
P.D. 12 25
(EPA) to issue its long-overdue aircraft emission standards. The action
was taken under the "citizen suit" provision of the Clean Air Act allow-
ing any person to file suit against the EPA administrator for failure to
perform an official function. In this case an inexcusable delay of almost
a full year jeopardized Massachusetts air pollution regulations limiting
aircraft emissions from planes taking off and landing in the Common-
wealth. A decree was obtained in May 1973 securing the relief re-
quested, with the court retaining jurisdiction to scrutinize compliance.
Also in the federal courts, the Attorney General joined the Sierra
Club and fifteen states as amicus curiae in the United States Supreme
Court, challenging action of the Environmental Protection Agency per-
mitting the degradation of clean air by lax enforcement regulations.
Specifically, the EPA regulations would have permitted significant de-
terioration of air quality in relatively unpolluted areas by permitting the
air to be polluted up to a certain air quality level. The Supreme Court
decision in June vindicated the Massachusetts position, thus protecting
the pristine air of the Berkshires and preventing industry forum-
shopping for geographical jurisdictions offering lax air quality standards.
Also in an amicus curiae role before the Supreme Court, the Attorney
General joined Florida in successful defense of that state's "strict liabil-
ity" oil spill statute. The Massachusetts brief sought to protect a similar
regulatory scheme which forms part of the backbone of the
Commonwealth's Clean Waters Act.
Another federal action, with the Attorney General as named plaintiff,
seeks to protect the Great Cedar Swamp in Middleborough by challeng-
ing $1.7 million in mortgage loans from the federal Farm Credit Associa-
tion (FCA) to Cumberland Farms of Connecticut. Inc. Although the
monies loaned were not federal funds, it is alleged that, by its supervi-
sory role over its local instrumentalities which gave the loans, the FCA
was well-equipped to implement the National Environmental Policy Act
(NEPA) and yet failed to do so. It is expected that legal defenses raised
by the defendants will be resolved in the fall of 1973, with this NEPA
case proceeding to trial later in the year. It is the position of the Attor-
ney General that substantial loans to large agricultural enterprises in
Massachusetts, through the active cooperation of federal agencies,
should be accompanied by the vigorous environmental analysis man-
dated by NEPA.
On the legislative front the Division submitted six major bills for 1973.
One bill was passed to secure speedy trials of pollution cases where
court delay may make impossible to remedy a harm already done. A bill
to subject all state agencies to state water pollution statutes was also
passed. Legislation providing for the Commonwealth to guarantee loans
made to private industry for pollution abatement measures became the
nucleus of a larger bill, now pending, to aid industry through a Mas-
sachusetts Economic and Environmental Development Corporation.
Bills to recodify the Commonwealth's air pollution statutes and to sub-
ject the Massachusetts Port Authority to all public health, safety and
natural resource laws, where now exempt, are also still pending as of
26 PD. 12
this report. An innovative bill to create "civil forfeitures,'" flexible
court-ordered money penalties for pollution violations, has enjoyed only
a lukewarm response in the legislature, but is sorely needed to give the
courts a non-criminal sanction, in addition to the civil injunction, in
order to control environmental degradation. Efforts to enact this en-
forcement tool will continue throughout the year.
Article 97 of the Articles of Amendment to the state Constitution, es-
tablishing a right to a clean environment, was submitted to and approved
by the voters on the November 1972 ballot. This article enables the
legislature to enact measures to protect the "new"" right and in addition
mandates that lands and easements publicly taken or acquired in order
to conserve, develop or utilize natural resources shall not be used for
other purposes or disposed of without a two-thirds roll call vote of each
legislative branch. The Attorney General's formal opinion on the latter
provision is the first definitive interpretation of Article 97 and has served
as a catalyst for all levels of government to tighten control over forest
land, agricultural land, open space, parkland and recreation areas, and
scenic and historic sites. It is apparent that Article 97 offers an innova-
tive tool for the protection of such lands and that its influence has only
begun to be felt.
During the year Attorney General Quinn"s 1971 intervention in
atomic energy licensing hearings came to fruition. Following more than
30 days of environmental and safety hearings on the Vermont Yankee
Nuclear Power Plant, in which the Commonwealth was represented by
this Division, the Atomic Energy Commission imposed strict conditions
on plant operation. To protect the Connecticut River, the A.E.C.
license requires "closed-cycle"" operation, with only minimal discharge
of water used to cool the plant, and with a special interstate advisory
group, consisting of Vermont, New Hampshire and Massachusetts
fishery and water resource experts, to monitor any damage that may
occur to land or water ecosystems, and to evaluate and act upon com-
pany requests in the future to utilize (and then discharge) large volumes
of river water for cooling. To protect Quabbin Reservoir in Massachu-
setts the plant license imposes tough radiation limitations, guaranteeing
(1) Department of Public Health and Metropolitan District Commission
access to records of radioactive discharges, and semi-annual reports of
all discharges; (2) retention of radiation samples for analysis by Massa-
chusetts officials; and (3) immediate notice to the Commonwealth of any
radiation discharges into the Connecticut River in excess of A.E.C. reg-
ulations, with ample time to take precautions to protect Quabbin Reser-
voir. An emergency notification system is to be established and paid for
by Vermont Yankee to give the Commonwealth prompt notice of plant
accidents creating site and general emergencies, backed up by direct
microwave communication with state police headquarters in the three
states, at company expense. In addition, advance notice is required to
Massachusetts of all shipments of nuclear fuel or wastes by rail or road
through the state.
P.D. 12 27
The Massachusetts Environmental Policy Act (MEPA) became effec-
tive December 31, 1972. As of that date all state agencies are obligated
to consider the environment in their decision making, and to minimize
harm to the environment. Environmental impact reports, after July 1,
1973, will accompany all state works, projects and activities. So few
agencies had prepared in advance to implement MEPA that the Attor-
ney General in early January addressed a memorandum to all state
agencies bringing to their attention MEPA's new obligations. One of the
first agency reactions to MEPA, unfortunately, was for the state Divi-
sion of Water Pollution Control to seek wholesale exemption from
MEPA. This move was strongly opposed by the Attorney General and
was eviscerated, with limited exceptions.
Several current civil lawsuits in the Massachusetts state courts stand
out as noteworthy. Following the final date for compliance, December
31, 1972. this Division evaluated airline conformity with a 1971 decree
entered in Suffolk Superior Court in settlement of Attorney General
Quinn's "public nuisance" suit against the ten major airlines serving
Boston. That decree required "retrofitting" each JT8D jet engine with
"reduced-smoke combustor cans" to eliminate unnecessary smoke,
especially on takeoff. A final report showing over 94% compliance by
the airlines is substantiated by noticeably cleaner airplane exhaust at
Logan Airport. Since certain airlines are unable to complete the retrot~it
schedule until 1973, and since the court decree secured by the Attorney
General imposes pollution limitations on new wide-body aircraft and
continuing requirements as to engine types other than JT8D, the case
will not be dismissed as yet, so that monitoring of airline performance
may be continued.
Dense, billowing smoke from the City of Lawrence dump, causing ac-
cidents on Route 495, led to immediate action against the city for failure
to comply with state air pollution laws. Space limitations, lack of state
funding and opposition from neighboring communities had prevented the
city from finding alternate disposal methods. It is hoped that confer-
ences scheduled with city officials, state administrators and the federal
Environmental Protection Agency will locate both available land and
financing for Lawrence's efforts. Attorney General Quinn is the only at-
torney general in the nation serving, on the nine-member national Solid
Waste Management Task Force, sponsored by the Council on State
Government, and the Lawrence case typifies the constraints on finding
solutions to our mounting solid waste problems which were pinpointed
by the Task Force's report this year.
Contempt proceedings were initiated against the Town of Uxbridge
for its failure to obey a court order requiring construction of a $5.9 mil-
lion waste treatment facility, to be reimbursed 75% by federal and state
funds. In a landmark decision in May 1972 the Supreme Judicial Court
had upheld the authority of the state water pollution control agency to
issue clean-up order to municipalities, but the Town's neglect thereafter
to acquire a site, hire an engineer and prepare plans made the contempt
action necessary.
28 P.D. 12
The Attorney GeneraFs suit against the City of Boston and the Bos-
ton Housing Authority, charging the BHA with using incinerators in-
capable of reducing air pollution to an acceptable level in 26 housing
projects, forced the federal Department of Housing and Urban
Development to authorize a unique $2 million pilot program to improve
solid waste disposal in those Boston projects which it funds. To date,
however, the money committed to the environmental renovations has
not materialized and, until promises become reality, the litigation will go
forward.
Since the criminal law is an effective enforcement tool, the Attorney
General took steps designating this Division coordinator of all civil and
criminal environmental enforcement in the Commonwealth. All state
pollution agencies were encouraged to utilize the resources of this Divi-
sion to seek criminal remedies when appropriate. In addition, a meeting
between Attorney General Quinn and the state District Attorneys in
November examined the increased public awareness of environmental
degradation and led to an agreement to share enforcement resources to
improve environmental quality. Criminal actions prosecuted in the dis-
trict courts by this Division led to the assessment of maximum fines
under the air pollution laws for the sale and distribution of high-sulphur
fuel oil by a North Shore company, and underwater pollution statutes
for a massive fish kill by an electric generating plant on the Cape Cod
Canal.
As this fiscal year draws to a close Attorney General Quinn plans to
host the first semi-annual roundtable of state assistant attorneys general
assigned to environmental protection in all the states, to share experi-
ence and research and to plan effectively for a united front in the federal
courts when environmental litigation arises affecting several states. The
Attorney General will appear at legislative hearings planned for the fall
requiring the reorganization of state environmental line agencies under a
single Executive Office of Environmental Affairs. The Secretary of En-
vironmental Affairs currently has the responsibility for implementing the
environmental impact report requirements of the state Environmental
Policy Act and this Division will actively assist in drafting regulations to
make MEPA effective.
The active case load of the Division, reflecting pending or prospective
enforcement litigation, is as follows: forty-three air pollution cases
(evenly divided between industrial and municipal sources); forty-nine
water pollution cases (again, half against industry and half against cities
and towns); forty-three coastal and inland wetland cases (largely against
individuals or corporations; a few against municipalities); and twelve
cases to enforce solid waste regulations or the State Sanitary Code
(two-thirds against individuals, the remainder against cities, towns or
businesses). Usually more complex than these state enforcement ac-
tions, there are fifteen federal and state court or administrative actions
in which the Attorney General has intervened on his own initiative.
These cases pertain to the licensing of nuclear power plants, public
nuisances, aircraft smoke emissions, unlicensed filling in of tidewaters,
automobile pollution, offshore oil development and highway projects.
P.D. 12 29
In addition to this enforcement caseload the Division has been called
upon in forty cases to defend the Department of Public Health, the De-
partment of Natural Resources, and the Outdoor Advertising Board
against legal challenges made in petitions for writs of mandamus, and in
petitions for judicial review, declaratory judgment or annulment of en-
vironmental controls as being ''takings without compensation." The
total caseload of the Division, then, amounts to 202 pending cases. This
number is exclusive of the more than sixty cases fully resolved during
the year through final injunctions or criminal tines.
The Division is pleased that the Legislature has acknowledged the re-
sponsibility borne by the Attorney General in protecting the environ-
ment, by giving the Division of Environmental Protection a legislative
mandate. The Division's workload has been immeasurably eased
through the excellent cooperation of client agencies and rising public
awareness and support of environmental enforcement.
Industrial Accidents
The Industrial Accidents Division serves as legal counsel to the
Commonwealth in all workmen's compensation cases involving state
employees. Pursuant to G. L. c. 152, § 69A, the Attorney General must
approve all compensation benefits payments and disbursements for re-
lated medical and hospital expenses in compensable cases. In contested
cases this Division represents the Commonwealth before the Industrial
Accident Board and in appellate matters before the superior court and
the Supreme Judicial Court.
In its capacity as custodian of the second injury funds under section
65 (General Fund) and section 65N (Veterans" Fund) of Chapter 152,
the Division represents the Commonwealth before the Industrial Acci-
dent Board in petitions filed by insurers and self-insurers for reimburse-
ment out of these funds. In accordance with the provisions of the stat-
ute, insurers and self-insurers are required to make payments into these
accounts in fatal industrial injury cases. The Division has the responsi-
bility for enforcing this obligation requiring the staff to appear before the
Board in such cases and to meet with insurers' counsel to adjust pay-
ments, usually by negotiation, in ca.ses where the issue of liability has
been in question or compromised. At the end of this fiscal year the Gen-
eral Fund (section 65) showed an unencumbered balance of $1 13,826.91,
with receipts of $8,590.00 and payments during the year totalling
$1,652.74. The Veterans' Fund (section 65N) showed receipts of
$186,373.73 and payments of $70,918.19 resulting in a balance of
$677,014.10. It should be noted that, proper attention having been given
to these accounts, securities have been purchased and the income from
proper investment this year amounted to $17,627.54. Both funds are
operating on a sound fiscal basis at no expense to the taxpayers.
During this fiscal year Attorney General Quinn introduced a bill
which extends the "Second Injury Fund Law". The Attorney General
had been fighting long and hard for legislation which would encourage
30 P.D. 12
the employment and reemployment of injured workers and handicapped
people in the Commonwealth. His bill provided for 50% reimbursement
after the first 104 weeks of disability compensation payments by insurers
and self-insurers, and additional reimbursement in cases involving in-
jured workers who had a service-connected disability certified by the
Veterans Administration. Very significant legislation for the Massachu-
setts worker, the Attorney GeneraFs bill was diligently guided to
enactment in the 1973 legislative year.
During the past fiscal year 8,867 First Reports of Injury for state em-
ployees were filed with the Division. The Division reviewed and ap-
proved 1,434 new claims for compensation in lost-time disability cases,
representing an increase of 143 over the previous year. The Division re-
viewed all claims for resumption of compensation, and 90 of these
claims were verified and approved. In addition to the foregoing, the di-
vision worked on and disposed of 153 claims by lump sum agreements
and payments without prejudice.
The Division appeared for the Commonwealth on 598 formal assign-
ments at the Industrial Accidents Board and in the courts. The
Division's staff members are frequently requested to appear and partici-
pate in a number of informal conferences and discussions relative to the
many issues involved in these industrial accident cases at the Board, in-
cluding the review of new cases for evaluation and approval by the At-
torney General. It is also necessary to continually review the accepted
cases and bring them up to date medically for further determination be-
fore a member of the Board.
Total disbursement by the Commonwealth for state employees' indus-
trial accident claims, including accepted cases, board and court deci-
sions, and lump sum settlements, for the fiscal year were as follows:
General Appropriation
(Appropriated to the Division of Industrial Accidents)
Incapacity Compensation $2,424,008.46
Medical Expenses 880,778.86
Total Disbursements $3,304,787.32
Metropolitan District Commission
(Appropriated to M.D.C.)
Incapacity Compensation $263,119.85
Medical Expenses 111,775.11
$374,894.96
Pursuant to section 1 1 A (Acts of 1950, c. 639, as amended), the Chief
of this Division represents the Attorney General as a sitting member of
the Civil Defense Claims Board. During the fiscal year over 20 such
claims were acted upon, awarding compensation to unpaid civil defense
volunteers who were injured in the course of their volunteer duties.
p.D. i: 31
Public Charities
The Public Charities Division is staffed by four attorneys and four
clerks and. as has been the tendency in recent years, both the volume
and importance of the matters handled showed an increase.
The staff of the Division reviewed the following matters relating to
trusts and estates in which there are charitable interests.
Trustee s accounts 2071
Petitions for Probate of Wills 692
Executors accounts 598
Administrator w.w.a. and Miscellaneous 349
There were 534 new petitions for Public Administration. During the
fiscal year 276 such estates were closed and 54 other petitions relating to
such estates were approved. In addition, there were 16 absentee mat-
ters.
A total of S284.959.39 was paid into the state treasury as escheats
from public administration and other estates. 3036 annual financial re-
ports by charitable corporations, trusts, etc. under G. L.. c. 12. § 8F
were recorded and filed in the period and 472 applications for Certifi-
cates of Registration to Solicit Contributions from the Public \\ere proc-
essed. The division received a large number of filings of Federal Form
9SH) .AR by Massachusetts private foundations.
In man\ court cases the .Attorney General was cited as a party and
the Division filed appearances and answers and took part in hearings.
A large volume of accounts of trustees and others, and petitions for
probate of wills were handled. There are thousands of these accounts
and wills involving ver> substantial amounts of money.
The Division also had a great number of petitions for reformation or
for instructions relating to charitable trusts under wills. This was due
primarily to the continuing impact of the Federal Tax Reform .Act upon
charitable foundations, requiring them to distribute a portion of their ad-
justed net income for the specified trust purposes or, in the alternative,
taxing them 159^ of the first year's undistributed income and 100^ of
each succeeding vear's undistributed income. Trust uwo .ARTHUR
.ASHWORTH. Trust u w o B. PARKER BABBIDGE (for educational
scholarships for students in the area of commercial education) and Trust
u w o GRACE TOWNS BL.ANCHARD (for the benefit of needy stu-
dents at Harvard and Radcliffei \^ere cases in which the court entered
decrees permitting distribution of all income and such amounts of prin-
cipal as to minimize taxation under the Tax Reform .Act. In the Trust
uwo CH.ARLES J. P.AINE for the benefit of two worthy male stu-
dents of Weston through the pa> ment of tuition and traveling exi>enses
while attending Harvard or M.I.T.. the Division assented to the entry of
a decree allowing beneficiaries and expense of room and board to be
added to the Trust purposes. In this way all the net income and so much
of principal as is necessar\ to minimize taxation under the Tax Reform
Act mav be used.
32 P.D. 12
There were many dissolutions of charitable corporations during the
period. Stowe Kindergarten, Inc. was dissolved by decree of the Su-
preme Judicial Court and its funds transferred to the Town of Stowe for
the purchase of recreational equipment for kindergarten children. Buy
State Medical Rehahilitation was dissolved and its funds transferred to
the Peter Bent Brigham Hospital for the same charitable purposes. Para
Tours, Inc., a charity which furnished transportation or shut-ins and
others, was dissolved and its assets distributed to charities concerned
with the physical and mental well-being of handicapped and needy per-
sons.
We approved the distribution by the trustee u/w/o HELEN I . DOBLE
of the trust fund to Phillips Exeter Academy. The income from the small
trust was to be used to provide scholarships for worthy students at the
Academy and the distribution was made subject to the restrictions of the
Trust.
In the trust u/w/o ALICE L. MACDOUGALL, for the benefit of
graduates of Memorial High School of Middleborough who had com-
pleted two years of study in a college or university, the Division as-
sented to a decree distributing all income and only so much of principal
in the form of grants rather than loans so as to avoid tax liability.
A notable case before the Supreme Judicial Court during the fiscal
year was the Selfridge case (New England Merchants National Bank of
Boston V. Josephine Stanley Kahn and others). The Bank, as Trustee,
u/w/o Annie F . Selfridge filed an equity petition for modification of the
trust by increasing the annuity and distributing excess net income to the
named charities. However, the three charities filed a counterclaim seek-
ing distribution of the entire trust in excess of the amount required to
support the annuity without any increase in the annuity. The Attorney
General took the position that the trust should not be partially termi-
nated as requested by the charities and that no part of the principal
should be distributed until the death of the annuitant. The Court dis-
missed the petition and counterclaim.
The Division obtained a restraining order against the Greater Boston
Public Affairs Bureau to prevent that organization from soliciting funds
in the name of charity. Criminal proceedings were brought against Sag-
gittarios Corporation for illegal charitable solicitation. Restraining or-
ders were also obtained against Mertz-Ufland, a publishing company,
and Massachusetts Children's Fund to prevent their charitable solicita-
tion. In these and other cases the Division has given close scrutiny and
has not hesitated to seek legal remedies against off-color charities and
solicitors.
The Division staff followed up on House Bill 6215, a bill co-sponsored
by the Attorney General, in its passage as Chapter 479, Acts of 1973.
The bill's enactment insured welcome relief to charities from burden-
some local taxes.
The Division continues to move in the direction set by its former Di-
rector, James J. Kelleher, who retired shortly before this period began
P.D. 12 33
and who. because of his kindliness, interest, and excellence as a lawyer,
left a marked imprint upon future work and decisions of the Public
Charities Division.
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 also handles references from the Massachusetts Discrimina-
tion 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 61 pending Eminent Domain cases — 37 in
Hampden, 20 in Hampshire and 9 in Franklin. From July 1 , 1972 to June
30. 1973, 11 cases in Hampden were settled; 1 pro harre hearing was
held; 4 trials were conducted and I case was discontinued. In Hamp-
shire. 2 cases were settled and 1 trial was conducted, while in Franklin
there were 3 cases settled and 2 trials were conducted.
Listed below are other cases which have been worked on in the
Springfield office.
HEW CASES TORT CASES
3 cases were completed 2 cases were completed
9 cases pending 8 cases pending
PUBLIC CHARITIES ENVIRONMENTAL CASES
3 cases pending 2 cases pending
VICTIM OF VIOLENT CRIMES CASES WELFARE FRAUD CASES
5 cases pending 54 cases worked on and com-
pleted
COLLECTION CASES
1 case completed
39 cases pending
The Trooper in the Criminal Division is constantly investigating crim-
inal offenses and cooperates with all law enforcement agencies in the
area.
In the field of consumer protection, the following cases were dealt
with by this office covering the period of July 1, 1972 to June 30, 1973.
OPENED CLOSED PENDING SAVINGS
1397 1381 222 $150,971.60
(The closed and pending figures include cases carried over from the
previous year.)
The staff also fulfills speaking engagements concerning consumer pro-
tection.
34 P.D. 12
The office gives legal assistance to various state agencies upon re-
quest.
Our total correspondence on various matters other than consumer
complaints averages over 125 letters per month and ranges from explain-
ing uniform support, birth control, abortion, pornography, and civil
liberties, to housing, rights of privacy, conflict of interest and zoning
problems.
The staff consists of three Assistant Attorneys General, one Deputy
Assistant Attorney General, three Special Assistant Attorneys General,
one investigator in Consumer Protection, one State Trooper in the Crim-
inal Division and two secretaries.
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, battery, false imprison-
ment, 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
suspension of a driver's license, violation of rights secured by the Con-
stitution of the United States, claims of death and injury resulting from
medical malpractice, and many cases of claims of death, injury and
property damage resulting from improperly maintained state highways
and negligently operated state motor vehicles.
The bulk of the Division's cases involved motor vehicle accidents.
During fiscal 1973, 157 cases were tried or settled and $172,567.75 was
paid to claimants as compared to 159 cases tried or settled with
$86,264.07 paid in fiscal 1972.
136 highway defect claims and "moral claims" were disposed of in the
fiscal year for an expenditure of $13,358.13 as compared to 104 such
cases and the expenditure of $12,854.47 in fiscal 1972.
The Collection Section during Attorney General Quinn's administra-
tion has collected over $409,000.00 annually, as compared to the previ-
ous decade in which $267,000.00 was collected annually.
From January 1969, until June 30, 1973. the Section has collected
$2,631,389.48. This is approximately equal to the amount collected in
the previous eleven years.
The type of cases handled by the Section include care and support
claims against patients of state hospitals, damage to state property,
claims for tuition at state colleges and universities, and subrogation
claims arising out of workmen's compensation benefits paid to state em-
ployees.
The following is a survey of cases involved in this phase of the
Division's work:
P.D. 12
35
Dcpculmcnt hi vol veil
Department o\' Mental Health
Department ot" Public Health
Department of Public Works
Metropolitan District Commission
Education
State Colleges
Welfare
Industrial Accidents Division
Office of the Secretary
Department of Correction
Corporations & Taxations
Public Utilities
Parole Board
Public Safety
Water\va\s Division
Board of Retirement
Natural Resources
Administration & Finance
Milk Control Commission
Division of Employment Security
Youth Services
Aeronautics Commission
TOTAL
Amount Received
No. of Claims
$193,369.58
54
50, 070. 04
111
118.535.45
241
17.338.83
58
5,599.43
88
3,234.04
34
837.69
18
22,274.44
11
694.25
17
292.08
4
43,970.82
1
20.00
3
675.00
1
3.000.00
2
4.213.13
2
904.04
I
592.00
5
650.14
5
122.29
2
144.50
I
775.00
1
6.393.20
I
$473,705.95
661
By virtue of General Laws Chapter 258A, an act providing for the
compensation of victims of violent crimes, the Attorney General has the
responsibility of investigating and reporting such claims to the district
courts of the Commonwealth. All claims are based on a victim's out-of-
pocket losses.
In 1968, the first year c. 258A went into effect, the Division received
fifty-five petitions from victims and nine claims were adjudicated
with total awards amounting to $4,498.58. Since 1968 the number of
these claims has drastically increased. Presently the Division receives
thirty petitions per month. In fiscal 1973 alone, 60 claims were com-
pleted with awards totaling over $150,000.00
In a case of first impression under the Violent Crime Statute, the Su-
preme Judicial Court in Guiley v. Conunoiuvealtlu 1973 Mass. ADV.
SH. 769, virtually assured that the dependents of a victim of violent
crime, who dies as a result thereof, would recover the maximum award
of $10,000.00.
Under the authority of Mass. General Laws, c. 168 § 31, Attorney
General Quinn has recovered over three quarters of a million dollars in
unclaimed bank deposits standing in the name of the First Judge of Pro-
bate for each county for the benefit of beneficiaries who could not be
located.
Fiscal 1973 was the first time that a complete search for such un-
claimed deposits was made in every probate court in the Common-
wealth. Some bank books have been on file for 100 years. In Worcester,
a $3.00 deposit made in 1870 had grown, with interest, to $93.00.
36 P.D. 12
The state treasurer has received the following amounts as a result of
the Attorney General's efforts:
County Amount
Norfolk $64,436.82
Bristol 18,603.63
Essex 38,970.91
Dukes 4,127.96
Worcester 183,089.32
Barnstable 1,001.39
Suffolk 126,688.15
Hampshire 13,973.61
Nantucket 1,867.46
Berkshire 54,274.94
Franklin 29,027.51
Plymouth 12,047.12
Middlesex 101,232.24
Springfield, Hampden 137,609.68
TOTAL $786,950.74
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.
P.D. 12 37
APPENDIX
Bills proposed by the Attorney General and Enacted by the 1973 Legislature:
—Chapter 141 AN ACT REQUIRING WRITTEN DISCLOSURE ON
BILLS OF SALE THAT MOTOR VEHICLES WERE USED AS
LEASE VEHICLES.
—Chapter 162 AN ACT PROVIDING THAT FAILURE TO NOTIFY
THE ATTORNEY GENERAL OF CERTAIN ENVIRONMENTAL
ADJUDICATORY PROCEEDINGS SHALL NOT INVALIDATE
THE SAME.
—Chapter 283 AN ACT PROVIDING FOR THE PRIORITY ON CIVIL
TRIAL LISTS OF CERTAIN ACTIONS OR SUITS BROUGHT BY
THE ATTORNEY GENERAL FOR ALLEGED DAMAGE TO THE
ENVIRONMENT.
—Chapter 300 AN ACT FURTHER REGULATING THE INVEST-
MENTS OF CERTAIN RETIREMENT SYSTEMS.
—Chapter 378 AN ACT FURTHER REGULATING THE CANCELLA-
TION OF CERTAIN FIRE INSURANCE POLICIES AND CON-
TRACTS AND REQUIRING NOTICE OF THE NON-RENEWAL
THEREOF.
—Chapter 456 AN ACT PROVIDING A CIVIL REMEDY FOR PER-
SONS DEFRAUDED BY THE TAMPERING WITH AUTOMOBILE
ODOMETERS. AND INCREASING THE CRIMINAL PENALTY
FOR SUCH TAMPERING.
—Chapter 475 AN ACT EXTENDING CERTAIN CRIMINAL PENAL-
TIES TO FRAUDULENT WELFARE CLAIMS.
—Chapter 479 AN ACT PROVIDING FOR THE ELIGIBILITY OF
CERTAIN CHARITABLE CORPORATIONS AND TRUSTS FOR
PROPERTY TAX EXEMPTIONS AND APPLICATIONS FOR
ABATEMENT OF TAXES ASSESSED OR PAID FOR THE TAX-
ABLE YEARS NINETEEN HUNDRED AND SEVENTY-THREE.
—Chapter 533 AN ACT RELATIVE TO THE SEALING OF PUBLIC
RECORDS OF CERTAIN OFFENSES.
—Chapter 546 AN ACT FURTHER REGULATING THE ADMINIS-
TRATION OF THE MASSACHUSETTS CLEAN WATERS ACT.
—Chapter 551 AN ACT RESTRICTING THE RIGHT OF INSURANCE
COMPANIES TO CANCEL OR REFUSE TO ISSUE AUTOMOBILE
INSURANCE POLICIES AND ESTABLISHING A PLAN OF
REINSURANCE AMONG THE COMPANIES.
—Chapter 567 AN ACT PROVIDING THAT CORPORATIONS AND
CERTAIN OTHER LEGAL ENTITIES SHALL BE SUBJECT TO
SUPPLEMENTARY PROCESS AND PROCEEDINGS IN CIVIL
ACTIONS IN THE DISTRICT COURT.
— Chapter 720 AN ACT PROVIDING FOR COLLECTIVE PUR-
CHASES BY POLITICAL SUBDIVISIONS OF THE COMMON-
WEALTH.
38 P.D. 12
—Chapter 748 AN ACT CHANGING THE SMALL CLAIMS PROCE-
DURE IN THE DISTRICT COURTS.
—Chapter 816 AN ACT REQUIRING THE DEPARTMENT OF PUB-
LIC UTILITIES TO NOTIFY THE ATTORNEY GENERAL AND
TO CONDUCT A PUBLIC HEARING BEFORE MAKING CER-
TAIN RATE SCHEDULE CHANGES.
—Chapter 855 AN ACT FACILITATING THE EMPLOYMENT OR
REEMPLOYMENT OF DISABLED WORKERS BY EXPANDING
THE FUNCTIONS OF THE SECOND INJURY FUND.
—Chapter 874 AN ACT REGULATING THE SALE OF THEMES,
TERM PAPERS, THESES OR RESEARCH PAPERS INTENDED TO
BE USED FOR ACADEMIC CREDIT, AND PROHIBITING THE
TAKING OF EXAMINATIONS FOR ANOTHER AT EDUCA-
TIONAL INSTITUTIONS.
—Chapter 1007 AN ACT FURTHER REGULATING THE OPERATION
OF MOBILE HOME PARKS.
—Chapter 1021 AN ACT RENAMING THE COMMITTEE ON LAW
ENFORCEMENT AND THE ADMINISTRATION OF CRIMINAL
JUSTICE AS THE COMMITTEE ON CRIMINAL JUSTICE AND
PROVIDING FOR ITS ADMINISTRATION OF CERTAIN FED-
ERAL ACTS.
—Chapter 1167 AN ACT ESTABLISHING A DIAGNOSTIC, EVALU-
ATION AND TREATMENT CENTER FOR EMPHYSEMA AT THE
LEMUEL SHATTUCK HOSPITAL.
—Chapter 1224 AN ACT PROVIDING FOR THE PAYMENT OF CER-
TAIN EXPENSES OF THE ATTORNEY GENERAL AND THE DE-
PARTMENT OF PUBLIC UTILITIES.
P.D. 12 39
Number 1 July 7, 1972
William J. Bicknell, M.D.
Commissioner
Department of Public Health
600 Washington Street
Boston. Massachusetts 021 1 1
Dear Dr. Bicknell:
This is in response to your question whether student nurses are pre-
cluded from administering certain medication because of the enactment
of Chapter 1071 of the Acts of 1971 which became effective July 1, 1972.
I answer your question in the negative. Section 9 of the Act authorizes a
physician to ^'administer controlled substances, or he may cause the
same to be administered under his direction by a registered nurse or
licensed practical nurse." The word "administer" is defined in Section 1
as follows: "the direct application of a controlled substance whether by
injection, inhalation, ingestion, or any other means to the body of a pa-
tient or research subject by ... (b) a registered nurse or licensed practi-
cal nurse at the direction of a practitioner in the course of his profes-
sional practice . . ." "practical nurse" and "registered nurse" are de-
fined in Section 1 of the Act as nurses licensed under the provisions of
Sections 74A and 74, respectively, of Chapter 112 of the General Laws.
The Act must be read with the provisions of Chapter 112 of the Gen-
eral Laws governing the registration of nurses (Sections 74 through
81C). Section SOB provides that "[f] or the purposes of sections
seventy-four to eighty-one C, inclusive" "professional nursing" and
"practical nursing" shall include, along with performing certain other
services, "administering treatment or medication prescribed by a physi-
cian or dentist ..." Section SOB further provides:
"Neither 'professional nursing' nor 'practical nursing' shall mean or
be construed to prevent ... (3) the performance, by any student en-
rolled in a school for nurses or practical nurses duly approved in accord-
ance with this chapter, of any nursing service incidental to any pre-
scribed course in such school . . ."
The Legislature must be deemed to have had this provision in mind
when enacting Chapter 1071 and therefore to have intended that stu-
dents not be prevented from "administering . . . medication" under the
supervision of a registered or licensed practical nurse as part of their
nursing training. This intent is further evidenced by the specific refer-
ence in Section 1 of the Act to the relevant provisions of Chapter 112 of
the General Laws. Furthermore, any other interpretation would be un-
reasonable because it would mean that no student could be taught
through personal application the proper administration of the controlled
substances listed in Section 31 of the Act.
In addition, any graduate of any approved school for nurses or practi-
cal nurses may practice nursing during the period from graduation until
announcement of the results of the first licensing examination for regis-
40 P.D. 12
tered nurses or licensed practical nurses thereafter held in accordance
with Chapter 112 (See G. L. Chapter 112, Section 81). The foregoing
applies, however, only to persons who have applied for licenses in this
Commonwealth. (See Opn. Atty. Gen. Feb. 9, 1966 p. 244).
I trust that the foregoing will answer your question.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 2 July 19, 1972
Dr. Robert Wood, President
University of Massachusetts
Office of the President
85 Devonshire Street
Boston, Massachusetts 02109
Dear President Wood:
You have requested my opinion with respect to the following two
questions:
"1. Does the University of Massachusetts have the au-
tonomous authority under Mass. G. L. c. 75 to enter into a
lease for a term of years for new office space with rental to be
paid from State appropriations, notwithstanding the provi-
sions of Mass. G. L. c. 8, § lOA and St. 1971, c. 719, or any
other provisions of law?"
"2. Does the University of Massachusetts have the au-
tonomous authority under Mass. G. L. c. 75 to enter into an
oral tenancy-at-will for additional office space with rental to
be paid from State appropriations, notwithstanding the provi-
sions of Mass. G. L. c. 8, § lOA and St. 1971, c. 719, or any
other provisions of law?"
I proceed first to Question Number 1. G. L. c. 8, § lOA provides, in
pertinent part:
"The commonwealth, acting through the executive or ad-
ministrative head of a state department, commission or board
and with the approval of the superintendent and of the gover-
nor and council and of the commissioner of administration,
may lease for the use of such department, commission or
board, for a term not exceeding five years, premises outside
of the state house or other building owned by the common-
wealth, if provision for rent of such premises for so much of
the term of the lease as falls within the then current fiscal
year has been made by appropriation."
"Section 10 A was enacted to give authorization to heads of depart-
ments, commissions and boards to enter into leases for premises outside
State owned buildings." United States Trust Company v.
P.D. 12 41
Coniinonwealth, 348 Mass. 378, 383. 'll]t was believed that the power
to lease would result in a saving of rental costs to the Commonwealth."
/(/., at 383. "The procuring of outside office space ... is mainly a ques-
tion of finance . . . This is a budgetary matter and should be handled
entirely by the Commission on Administration and Finance." /(/., at
383.
The first issue raised by your question is the extent, if any, to which
G. L. c. 8, § lOA applies to the Board of Trustees of the University of
Massachusetts. Notwithstanding Opinion of the Attorney General, July
19, 1965 at 47, 48, I have serious doubts whether the Board of Trustees
constitutes a "board" within the intent and purview of G. L. c. 8, §
lOA. However, I do not, at present, find it necessary to make such a
determination since, in my opinion, even if at one time G. L. c. 8, § lOA
did encompass the Board of Trustees of the University of Massachu-
setts, it has since been impliedly repealed with respect to that body.
As I previously stated in Opinion of the Attorney General, December
17, 1969, at 86, "[cjhapter 648 of the Acts of 1962 significantly amended
G. L. c. 75 and expanded the authority of the Board of Trustees of the
University of Massachusetts." As amended, G. L. c. 75, § 1 provides:
"There shall be a University of Massachusetts which shall
continue as a state institution within the department of educa-
tion but not under its control and shall be governed solely by
the board of trustees established under section twenty of
chapter fifteen. In addition to the authority, responsibility,
powers and duties specifically conferred by this chapter, the
board of trustees shall have all authority, responsibility,
rights, privileges, powers and duties customarily and tradi-
tionally exercised by governing boards of institutions of
higher learning. In exercising such authority, responsibility,
powers and duties said board shall not in the management of
the affairs of the university he subject to, or superseded in
any such authority by, any other state board, bureau, de-
partment or commission, except as herein provided." (Em-
phasis supplied.)
G. L. c. 75, § 3 provides, in pertinent part:
""Notwithstanding any other provision of law to the con-
trary, except as herein provided, the trustees may adopt,
amend or repeal such rules and regulations for the govern-
ment of the university, for the management, control and ad-
ministration of its affairs, for its faculty, students and em-
ployees, and for the regulation of their own body, as they
may deem necessary ..." (Emphasis supplied.)
G. L. c. 75, § 8 provides, in pertinent part:
""Notwithstanding any other provision of law to the
contrary, the general court shall annually appropriate such
sums as it deems necessary for the maintenance, operation
and support of the university; and such appropriations shall
42 P.D. 12
be made available by the appropriate state officials for ex-
penditure through allotment, transfer within and among sub-
sidiary accounts, advances from the state treasury in accord-
ance with the provisions of sections twenty-four, twenty-five
and twenty-six of chapter twenty-nine, or for disbursement
on certification to the state comptroller in accordance with
the provisions of section eighteen of said chapter twenty-
nine, as may from time to time he directed by the trustees or
an officer of the university designated by the trustees.'' (Em-
phasis supplied.)
G. L. c. 75, § 11 provides, in pertinent part:
"The trustees shall administer property held in accordance
with special trusts, and shall also administer grants or devises
of land and gifts or bequests of personal property made to the
commonwealth for the use of the university, and execute said
trusts, investing the proceeds thereof in notes or bonds se-
cured by sufficient mortgages or other securities. The trus-
tees shall have the authority to assent to federal laws de-
signed to benefit the university and to enter into agreements
or contracts with the federal government or agencies thereof,
as well as into agreements or contracts with agencies of other
governments, other colleges and universities, foundations,
corporations, interstate compact agencies and individuals
where such agreements or contracts, in the Judgment of the
trustees, will promote the objectives of the university." (Em-
phasis supplied.)
And, G. L. c. 75, § 12 provides, in pertinent part:
"The trustees shall, on behalf of the commonwealth, man-
age and administer the university and all property, real and
personal, belonging to the commonwealth and occupied or
used by the university, . . .""
The language of the foregoing provisions specifically and G. L. c. 75
as a whole make it clear that the Legislature intended that the authority
of the Board of Trustees be autonomous with respect to the management
and administration of the affairs of the University, just as the authority
of governing boards of private institutions of higher learning is autono-
mous with respect to the management and administration of their affairs.
In freeing the Board of Trustees from the control or supervision of any
state board, bureau, department or commission, the Legislature, in my
opinion, necessarily understood that the management and control of
University property was fundamental to the function of administration
and that instrumental to that function is the authority to enter into a
lease, a power customarily and traditionally exercised by governing
boards of institutions of higher learning.
With respect to the principle of implied repeal then, the question is
whether G. L. c. 8, § lOA is so in conflict with G. L. c. 75 as a whole
and with section I of c. 75 in particular that both cannot stand. "The
P.O. 12 43
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 subject matter that both cannot stand/' Doherty v.
Commissioner of Administration. 349 Mass. 687, 690. Thus. " 'the
enactment of a statute which seems to have been intended to cover the
whole subject to which it relates, impliedly repeals all existing statutes
touching the subject . . ." " Sullivan v. Worcester, 346 Mass. 570, 573.
Based upon the language of G. L. c. 8, § lOA and G. L. c. 75. it is my
opinion that, insofar as G. L. c. 8, § lOA may have applied, at one time,
to the Board of Trustees, it has since been impliedly repealed with re-
spect to that body.
This conclusion is buttressed by reference to the legislative history of
G. L. c. 75. A perusal of 1962 House Document No. 3350, Report of
the Special Commission on Budgetary Powers of the University of
Massachusetts and Related Matters, which led to the enactment of
Chapter 648 of the Acts of 1962, reveals the Legislature's deep concern
that the Board of Trustees not be subjected to the fiscal administrative
and management controls exercised by various state agencies, with cer-
tain limited exceptions, lest they interfere with the management of the
University. In deciding whether the use of appropriated funds should be
controlled in detail by the executive agencies of the state or whether the
specific use of funds should be left to the discretion of the educators and
administrators responsible for the University, the Commission arrived at
the conclusion that the University (and Lowell Technological Institute)
should operate under four essential controls and that "[bjeyond these
reasonable limits, further restrictions on the authority of the trustees can
lead to impairment of their ability to manage the institution as the public
requires." 1962 House Document No. 3350, at 9. Those four controls
left the specific use of public funds to the discretion of the trustees of the
University. While reserving the decisions to be made with respect to the
use of said funds to the trustees, the Commission did urge, in limitation
III, complete management and financial reporting to the control agen-
cies of the state to promote public understanding of the manner in which
the taxpayers' dollars were being spent and, in limitation IV, a post-
audit of all accounts to account for the expenditure of public funds.
Thus, while the level of support which the University is to receive
should be initially determined by the Legislature, and the specific uses
to which the funds, once appropriated, shall be put, are to be determined
by the Board of Trustees — the financial reporting and post-auditing of
accounts provide the Legislature with "a full picture of University oper-
ations for the year." 1962 House Document No. 3350. at 11. To those
who suggested that the University need be autonomous only in the
scholarly phases of its operation, the Commission responded that,
"[VJirtually every activity on a college campus has
academic implications. Imprudent intervention of state agen-
cies in non-academic areas can quickly penetrate to educa-
tional policy." 1962 House Document No. 3350, at II.
Accordingly, it is my opinion that it was the intention of the Legisla-
ture to give the Board of Trustees complete discretion in the manage-
44 PD. 12
ment and administration of the University in both academic and non-
academic areas, and that the specific uses to which funds once appro-
priated are put to be left to the sound discretion of the trustees and
educators responsible for the management of the University. This over-
riding legislative intent embraces, in my opinion, the fiscal controls con-
tained in G. L. c. 8, § lOA.
Turning briefly to c. 719 of the Acts of 1971, the Appropriation Act
for fiscal 1971, section 13 provides:
"'Notwithstanding the provisions of section ten A of chap-
ter eight of the General Laws, no lease negotiated as pro-
vided therein nor any agreement providing for a tenancy at
will or other space rental shall he signed by the executive or
administrative head of a state department, commission or
hoard or approved by the state superintendent of buildings
and by the governor and council and by the commissioner of
administration unless it is in accordance with schedules filed
by the budget director with the house and senate committees
on ways and means prior to the passage of this act; provided,
that renewals of leases, tenancies at will and other space ren-
tals may be continued at existing rates pending appropriation
if the general court has not provided otherwise; and, further
provided, that the commissioner of administration, in order to
meet unforeseen circumstances may approve, on a tenancy at
will basis, a change in location, new or additional space, or an
increase in rate, if funds are available therefor within the ap-
propriation account from which the costs of such space ren-
tals are to be paid; and, further provided, that every such
proposed change is filed by the budget director with the
house and senate committees on ways and means prior to the
final authorization of any such agreement." (Emphasis sup-
plied.)
In my opinion, this statutory provision does not limit the autonomous
authority of the Board of Trustees to enter into a lease for a term of
years since it is clear that this provision is premised upon the mechanics
of G. L. c. 8, § lOA and that it was intended to apply only to those
leases or rental agreements subject to the terms of that section. Since it
is my conclusion that § lOA has been impliedly repealed with respect to
the Trustees (if indeed, it ever applied), it follows a fortiori that the
Legislature did not intend that § 13 apply to the Trustees. Nor is my
opinion affected by the provisions of § 20 of c. 719 of the Acts of 1971
which in substance states that certain sections shall not apply to expen-
ditures from appropriations made for the University, among other
named entities, and which does not refer to § 13. Since § 13 does not
apply for the reasons hereinbefore stated, the mere omission of a refer-
ence to the section in § 20 is neither determinative nor persuasive. In
conclusion, with respect to Question No. 1, it is my opinion that the
Trustees have the autonomous authority under G. L. c. 75 to enter into
P.D. 12 45
a lease for a term of years for new office space with rental to be paid
from State appropriations. My opinion is the same for the Appropriation
Act for 1972. c. 514 of the Acts of 1972. since the terms therein are iden-
tical in substance to §§ 13 and 20 of the 1971 Appropriations Act.
With respect to Question No. 2, I arrive at the same conclusion. If a
department, commission or board has authority, under a special statute
or otherwise, to bind the Commonwealth to an oral or other agreement
establishing a tenancy at will. G. L. c. 8. § lOA does not apply. Opinion
of Attorney General, March 25, 1953, at 40, 41. In my opinion such au-
thority is necessarily and logically implied under the terms and scope of
G. L. c. 75, as explained supra. Therefore, the Comptroller's Division
cannot refuse to process properly completed purchase order and stand-
ard invoice forms for the payment of rent for tenancies at will entered
into by the University on the grounds of either G. L. c. 8, § lOA or c.
719 of the Acts of 1971.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 3 July 20, 1972
Honorable Steven A. Minter
Commissioner of Public Welfare
600 Washington Street
Boston, Massachusetts 02111
Dear Commissioner Minter:
You have requested my opinion whether the Department of Public
Welfare may use funds appropriated for fiscal year 1973 to pay bills in-
curred in fiscal year 1972 since the funds for the latter year have been
exhausted.
St. 1972, c. 514, the appropriations act for fiscal 1973, included funds
in the various welfare budget items without setting forth in those items
the words "Including prior year expenses" or "Prior appropriation con-
tinued" as was the case for the same items in the 1972 fiscal year
budget. Section 1 of Chapter 514 provides in part that "the sums set
forth in section two . . . are hereby appropriated . . .for the fiscal year
endinii June the thirtieth, nineteen hundred and seventy-three . . . or for
such period as may he specified.^' [Emphasis added.]
G. L. c. 29, § 12 provides as follows:
"Appropriations by the general court, unless specifically
designated as special shall be for the ordinary maintenance of
the several departments, offices, commissions and institu-
tions of the commonwealth and shall be made for the fiscal
year unless otherwise specifically provided therein.''
[Emphasis added.]
46 P.D. 12
Under the provisions of St. 1972, c. 514. § 1 and G. L. c. 29, § 12, the
money appropriated by the Legislature pursuant to said c. 514 may only
be used to meet expenses incurred during the fiscal year 1973 unless
other dates are specified. With respect to the items set forth in your
opinion request, namely 4401-1000, 4402-5000, 4403-2000, 4405-2000,
4406-2000 and 4407-2000, the Legislature did not specify in said c. 514
that the amounts in these items may be used to pay prior year expenses.
Consequently, without further legislative action, the omission of such
language in c. 514 would preclude the Department from paying bills in-
curred in fiscal year 1972 with money from the fiscal year 1973 budget.
However, St. 1972, c. 647 makes certain additional provisions with re-
spect to items 4402-5000, 4405-2000 and 4407-2000 in the budget. Section
2 of said chapter provides for an appropriafion of $9,200,000 for a medi-
cal assistance program (item 4402-5000) and for a transfer of $15,000,000
in item 4405-2000 and $5,000,000 in item 4407-2000 from the budget to be
used for purposes of this section. Section 2 then provides that such
funds may be used to pay expenses incurred in the months of April,
May and June, 1972 for each of these items.
Accordingly, in my opinion you can only make payments for provider
services incurred prior to July 1, 1972 if they were incurred in the
months of April, May and June, 1972 and were for items 4402-5000,
4405-2000 and 4407-2000, and only up to amounts set forth in St. 1972, c.
647, § 2, for each item.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 4 August 9, 1972
Henry Clay, Esquire
Executive Secretary
Governor's Council
State House
Boston, Massachusetts 02133
Dear Mr. Clay:
You have requested my opinion concerning a second pro tanto award
for an eminent domain taking made by the Commonwealth's Depart-
ment of Public Works. From the facts recited in your letter, it appears
that on June 16, 1971 the Department approved a pro tanto award for a
taking in the City of Peabody. That award, which included apportioned
taxes and interest, totalled $55,582.72. On June 24, 1971, the
Department's order of taking was recorded with the Essex County Reg-
istry of Deeds (Book 5777, page 309), and thereafter, on August 19, 1971
the award was accepted by the property owners.
Because the Massachusetts Department of Community Affairs did not
approve the relocation plan for the project for which the taking was
made until June 1971 and because the original appraisals were made dur-
P.D. 12 47
ing the period September through November of 1970, the Department of
Public Works determined that a review of the original appraisals was in
order. That review resulted in two new appraisals, and. on April 12,
1972, the Department of Public Works voted an increase of $11,000.00
over and above the original pro tanto award. Payment of that sum is
now before the Council for its approval, and you ask, on behalf of the
Council, whether the second payment may be made in the light of the
provisions of G. L. c. 79, § 6. For the reasons stated hereinafter, I con-
clude that approval and payment of a second pro tanto award would vio-
late section 6, and I answer your question in the negative.
General Laws, c. 79, § 6 provides in part:
"Such award [a pro tanto award] may be amended by said
board of officers at any time prior to the payment thereof by
reason of a change in ownership or value of said property
before the right to damages therefor has become vested or for
other good cause shown." (Emphasis supplied.)
In the instant case, an amendrhent to the award could have been made
by the Department "at any time prior to the payment thereof," which
date was August 19, 1971. On that date, the Department's power to
amend was lost, and the Department could not at a subsequent time take
administrative action based on the evidence of change of value dis-
covered as a result of the two new appraisals on November 18, 1971 and
February 2, 1971.
What I have said does not leave the original owners without a remedy
should they have a valid claim to additional damages. General Laws, c.
79, § 14 provides that even in the face of an award under section 6, a
party
"may petition for assessment of such damages to the
superior court of the county in which the property taken or
injured was situated."
Very truly vours,
ROBERT H. QUINN
Attorney General
Numbers August 21, 1972
Mrs. Helen C. Sullivan
Director of Registration
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Mrs. Sullivan:
The State Examiners of Electricians, through you, have requested my
opinion whether the inspector of wires appointed by a city or town pur-
suant to G. L. c. 166, § 32, must be a licensed master or journeyman
electrician. For the reasons expressed herein, I answer your question in
48 P.D. 12
the affirmative with respect to individuals appointed by a city and those
appointed by towns which have accepted the provisions of G. L. c. 31
relating to civil service. With respect to wire inspectors appointed by
towns which have not accepted the provisions of said chapter 31,1 an-
swer your question in the negative.
General Laws, c. 141, § 1, provides in part:
"No person, firm or corporation shall enter into, engage in,
or work at the business of installing wires, conduits, ap-
paratus, fixtures or other appliances for carrying or using
electricity for light, heat or power purposes, unless such per-
son, firm or corporation shall have received a license and a
certificate therefor ..." (Emphasis supplied.)
Said section defines a master electrician as one having a regular place
of business who, by the employment of journeymen, learners and ap-
prentices, performs the work of installing wires, conduits, apparatus,
fixtures and other appliances for light, heat or power purposes. "Jour-
neyman electrician" is defined as a person qualified to perform electrical
work.
Section 3 of c. 141 declares that the master electrician's license shall
be known as "Certificate A," and the journeyman's license as "Certifi-
cate B." Subdivision (1) of said section provides that Certificate A shall
be issued to any person engaging in the business of installing electrical
wires or appliances; however, the possession of said certificate does not
entitle the holder individually to perform the work, but rather entitles
him to conduct business as a master electrician. Subdivision (2) provides
that Certificate B shall be issued to any person passing the examination
given by the State Examiners of Electricians, and authorizes the holder
to engage in the occupation of a journeyman electrician. It appears,
therefore, that the Legislature, desiring to preserve and protect the pub-
he safety, requires a master's license of one engaging in the electrical
business and hiring others to do the work, and a journeyman's license of
those hired to do the work.
General Laws, c. 166, § 32, which provides for the appointment of
wire inspectors and prescribes their duties, provides in part:
"A city shall, by ordinance, designate or provide for the
appointment of an inspector of wires, and a town shall pro-
vide by vote or by by-law for the appointment by its select-
men of such an inspector . . . 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 at-
tachments, insulation, supports or appliances are improper or
unsafe, or whenever the tags or marks thereof are insufficient
or illegible; shall, at the expense of the city or town, remove
every wire the use of which has been abandoned, and every
wire not tagged or marked as hereinabove required, and shall
P.D. 12 49
.v('(^ that (ill laws a ml rci^iiUidoiLs relative to wires are strictly
enforced ..." (Emphasis supplied.)
There is no express requirement in section 32 that the individual ap-
pointed pursuant to said section be a licensed master or journeyman
electrician. It should be noted that it was not until St. 1945, c. 529, that
towns were required to appoint wire inspectors. Prior to the enactment
of that statute, the words "inspector of wires" were stated to mean "the
selectmen" in those towns which did not have a wire inspector.' Obvi-
ously, a selectman would not necessarily be an individual experienced in
electrical matters. Had the Legislature intended to narrow by statute the
class of individuals from which a town could appoint a wire inspector, it
would have so stated.
Moreover, the duties imposed by c. 166, § 32 upon a wire inspector do
not entail the installation of "wires, conduits, apparatus, fixtures or
other appliances for carrying or using electricity for light, heat or power
purposes." The power of a wire inspector to "remove" abandoned
wires or wires not properly tagged or marked does not, in my opinion,
constitute that type of electrical work for which a master's or
journeyman's license is required.
However, notwithstanding the foregoing, a city or town is required to
appoint a master or journeyman electrician as its inspector of wires if
said position is subject to the laws of the Commonwealth relating to civil
service.
General Laws, c. 31, § 12B provides:
"No applicant for the position of inspector of wires shall be
certified by the director of civil service for such position un-
less he shall first have had issued to him, under the provisions
of section three of chapter one hundred and forty-one, 'Cer-
tificate A" or 'Certificate B'."
Thus, the resolution of your question depends upon whether or not
the position of inspector of wires is a civil service position. At this point
it is necessary to separate your question so as to distinguish between
wire inspectors appointed by cities and those appointed by towns.
Paragraph one of G. L. c. 31, § 47, provides:
"'This chapter shall he in force with respect to the official
and labor service in all cities of the conunonwealth of one
hundred thousand or more inhabitants, whether or not such
cities have accepted this chapter or corresponding provisions
of earlier law. This chapter shall he in force in all cities of the
commonwealth of less than one hundred thousand inhabit-
ants with respect to the official service and shall be in force
with respect to the labor service in cities of less than one
hundred thousand inhabitants which have accepted the cor-
responding provisions of earlier laws or accept the pertinent
' Simihii liingu.ige iippe;iis in cxisunj; ^lilHltc^ noluiih\t;indinj; § 32 which icqiiircs wire inspcclois. See. e.g.. c. 166. §
50 P.D. 12
provisions of this chapter by vote of the city council." (Em-
phasis supplied.)
It is clear from c. 31, § 47, that with respect to "official service" the
provisions of chapter 31 are applicable to all cities of the Commonwealth
whether or not said cities have accepted the provisions of the chapter.
"Official service" is defined in c. 31, § 1 as "positions placed in such
service under the rules of the commission." I have been advised by the
Commission that the position of inspector of wires has been designated
as official service.^ In the light of c. 31, §§ 12B and 47, and the
Commission's designation of the position of inspector of wires as "offi-
cial service," I conclude that wire inspectors appointed by cities must
be either licensed master or journeymen electricians.
Whether or not an individual appointed by a town must be a licensed
master or journeyman electrician depends upon whether the town has
accepted the provisions of chapter 31. On this point, I need only refer
you to the second paragraph of c. 31, § 47, which sets forth the manner
in which towns accept the provisions of chapter 31.
Finally, with respect to those towns which have not accepted the pro-
visions of chapter 31,1 conclude that the individual appointed as wire
inspector need not be a licensed master or journeyman electrician. It
should be emphasized that this opinion does not authorize a wire inspec-
tor to perform electrical work without a license, but rather only indicates
my opinion that the duties of a wire inspector as set forth in c. 166, § 32
do not constitute electrical work for which a license must be obtained.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 6 August 22, 1972
Honorable William J. Bicknell, M.D.
Commissioner of Public Health
600 Washington Street
Boston, Massachusetts 02111
Dear Commissioner Bicknell:
You have requested my opinion whether the Department of Public
Health is required to test every marihuana sample submitted to it by law
enforcement officials to determine the percentage of tetrahydrocan-
nabinol which it contains.
General Laws, c. Ill, § 12 provides:
"It [the Department of Public Health] shall make, free of
charge, a chemical analysis of any narcotic drug, or any prep-
aration containing the same, or any salt or compound thereof,
and of any poison, drug, medicine or chemical, when submit-
^ Rule 3(3) of the Civil Service Rule^ provides that a list of all offices or positions designated as official service and any
amendments or additions thereto, "shall be on file in the office of the Division of Civil Service, which list shall be open
to reasonable inspection by the public . . .■"
P.D. 12 51
ted to it by police authorities or by such incorporated charita-
ble organizations in the commonwealth, as the department
shall approve for this purpose: provided, that it is satisfied
that the analysis is to be used for the enforcement of law."
General Laws, c. 94C (the controlled Substances Act). § 1 defines
marihuana as follows:
"[A]ll parts of the plant Cannabis sativa L., whether grow-
ing or not: the seeds thereof: and resin extracted from any
part of the plant: and every compound, manufacture, salt, de-
rivative, mixture or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of
the plant, any other compound, manufacture, salt derivative,
mixture or preparation of the mature stalks, except the resin
extracted therefrom, fiber, oil or cake of the sterilized seed of
the plant which is incapable of germination."
Section 1 also defines tetrahydrocannabinol as follows:
"[TJetrahydrocannabinol or preparations containing tet-
rahydrocannabinol excluding marihuana except when it has
been established that the concentration of delta-9 tetrahy-
drocannabinol in said marihuana exceeds two and one half
per cent."
Thus, in order to determine whether a particular controlled substance
is to be regarded as marihuana or tetrahydrocannabinol, it must be "es-
tablished that the concentration of delta-9 tetrahydrocannabinol in said
marihuana exceeds two and one half per cent." It is my understanding
that a quantitative chemical analysis is necessary to establish the correct
concentration level.
Therefore, in direct response to your questions, it is my opinion that
the Department of Public Health must test every marihuana sample
submitted to it by law enforcement officials if said officials expressly re-
quest such a test and the Department "is satisfied that the analysis is to
be used for the enforcement of law." G. L. c. 11 1, § 12. In reaching that
determination, the Department may require a statement of facts suffi-
cient to establish the purpose of the test. ,, ^ ,
Very truly yours,
ROBERT H. QUINN
Attorney General
Number? August 23, 1972
Mr. Martin P. Davis, Chairman
Advisory Board of Pardons
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Mr. Davis:
You have requested an opinion whether a prisoner serving a sentence
containing a minimum sentence, for a crime committed while on parole,
52 P.D. 12
may be paroled when he has served two-thirds of such minimum. For
the reasons stated hereinafter, I answer your question in the affirmative.
Your question involves an interpretation of G. L. c. 127, § 133, clause
(c). Section 133 provides:
"Parole permits may be granted by the parole board to
prisoners subject to its jurisdiction at such time as the board
in each case may determine; provided (a) that no prisoner,
convicted for a violation of section thirteen, thirteen B, four-
teen, fifteen, fifteen A, fifteen B, sixteen, seventeen, eight-
een, eighteen A, nineteen, twenty, twenty-one, twenty-two,
twenty-two A, twenty-three, twenty-four, twenty-four B,
twenty-five, or twenty-six of chapter two hundred and sixty-
five, or section seventeen, thirty-five, or thirty-five A of
chapter two hundred and seventy-two, or for an attempt to
commit any crime referred to in said sections, and held under
a sentence containing a minimum sentence shall receive a
parole permit until he shall have served two thirds of such
minimum sentence, but in any event not less than two years
or if he has two or more sentences to be served otherwise
than concurrently, two thirds of the aggregate of the
minimum terms of such several sentences, but in any event
not less than two years for each such sentence; provided,
further, however, that upon the written recommendation of
the superintendent or the director of the prison camp, and the
commissioner of correction, and, with the consent and ap-
proval of a majority of the full parole board, such a prisoner
shall become eligible for parole consideration, and, with like
consent and approval, may be given a parole permit before
such time, but in any event not sooner than such a parole
permit may be granted to other prisoners under clause (b) of
this section; (h) that no other prisoner held under a sentence
containing a minimum sentence shall receive a parole permit
until he shall have served one third of such minimum sen-
tence, but in any event not less than one year, or, if he has
two or more sentences to be served otherwise than concur-
rently, one third of the aggregate of the minimum terms of
such several sentences, but in any event not less than one
year for each such sentence; (c) that no prisoner held under a
sentence containing a minimum sentence for a crime commit-
ted while on parole shall receive a parole permit until he shall
have served two thirds of such minimum sentence, or, if he
has two or more sentences to be served otherwise than con-
currently for offenses committed while on parole, two thirds
of the aggregate of the minimum terms of such several sen-
tences, but in any event not less than two years for each such
sentence. Notwithstanding clauses (a), (/?) and (c) of this sec-
tion, deductions shall be allowed for blood donations as pro-
vided in section one hundred and twenty-nine A, and deduc-
P.D. 12 53
tions shall be allowed for time confined in a prison camp as
provided in section one hundred and twenty-nine C, said de-
ductions to reduce the term of imprisonment by computing
said additional deductions and subtracting the same from the
minimum term of sentence for release on parole as authorized
by this section, or for reducing the term of imprisonment by
deduction from the maximum term for which he may be held
under his sentence or sentences."
The section sets forth the eligibility and requisites for parole permits
granted by the Parole Board. Clause (a) appertains to parole require-
ments following conviction of one or several violent or morally rep-
rehensible crimes. More narrowly, it applies where a convicted person is
held under a sentence for such crimes and the sentence provides for a
minimum sentence. The provisions of clause (b) relate to non-violent
and non-lascivious criminal offenses. Clause (c) focuses on parole eligi-
bility for a person convicted of a crime while on parole. As with clause
(a), clauses (b) and (c) apply only to those instances where the sentences
contain mandatory minimums.
Clauses (a), (b) and (c) each distinguish, for parole purposes, between
detention under single and concurrent sentences on the one hand and
multiple sentences on the other. Clauses (a) and (b) expressly provide
that a prisoner may not be paroled prior to confinement under single or
concurrent sentences for two years and one year respectively, despite
the fact that he may have satisfied the two-thirds minimum requirement
of clause (a) or its one-third counterpart in clause (b). Clause (c) con-
tains no such qualification on its two-thirds minimum requirement for
single or concurrent sentences. Such omission in clause (c) appears pur-
poseful.
Clauses (a), (b) and (c) each contain minimum requirements for parole
under multiple sentences. In turn, each provides absolute yearly
minimums [two years for each sentence in clause (a), one year for each
sentence in clause (b) and two years for each sentence in clause (c) ] for
parole eligibility, which absolute minimums take precedence over the
more general two-thirds aggregate [clause (a) ], one-third aggregate
[clause (b) ] and two-thirds aggregate [clause (c) ]. In providing for such
absolute yearly minimums for multiple sentences, all three clauses emp-
loy the same language and grammatical construction.
in clause (a), the yearly minimum figure is two years for both single or
concurrent sentences on the one hand and multiple sentences on the
other. Clause (b) employs a one-year yearly minimum figure. However,
both clauses (a) and (b) contain separate identical yearly minimum fig-
ures immediately following the references to the language concerning
single, concurrent and multiple sentences. Clause (c) contains only a
single yearly minimum figure and this is annexed to the multiple sen-
tence language.
Consequently, to postulate that in clause (c) the yearly minimum fig-
ure which directly follows the multiple sentence provision modifies mul-
54 P.D. 12
tiple as well as single and concurrent sentences is to characterize the
separate yearly minimum figure for single and concurrent sentences in
Clause (a) and (b) as mere surplusage. If the General Court had in-
tended the yearly minimum figure which follows the multiple sentence
language in all three clauses to apply to all three categories of sentences,
it would have been unnecessary to insert a separate yearly minimum fig-
ure immediately following the single and concurrent sentence language
in clauses (a) and (b).
In my view, had the General Court intended the yearly minimum fig-
ure of clause (c) to apply to single and concurrent sentences referred to
in that clause, it would either have inserted a separate but identical fig-
ure to modify such sentences as was done in clauses (a) and (b) or it
would have altered the language and structure of the modifying phrase
containing the yearly figure which immediately follows its provisions on
multiple sentences. As indicated supra, clauses (a), (b) and (c) contain
identical language and grammatical construction following their multiple
sentence language, and it has been established that in clause (a) and (b)
the yearly minimum figure contained in that phrase directly modifies
multiple sentences only. It must be assumed that by employing the iden-
tical phrase in clause (c), the General Court only intended that the
yearly figure contained therein modify multiple sentences.
Thus, it is my opinion that a prisoner serving a sentence or several
sentences concurrently containing a minimum sentence, for a crime
committed while on parole, may be paroled when he has served two-
thirds of such minimum, even if such portion is less than two years.
Very truly yours,
ROBERT H. QUINN
Attorney General
Numbers August 31, 1972
Honorable Daniel P. McGillicuddy
Commissioner of Commerce and Development
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Commissioner McGillicuddy:
You have requested my opinion whether operation of a glass con-
tainer manufacturing plant by The Foster-Forbes Glass Company, an
Indiana corporation, in Milford, Massachusetts would be prohibited by
the provisions of G. L. c. 136, § 5, or whether the operation falls within
the exception contained in section 6 of that chapter. For the reasons
stated hereinafter, I conclude that such operation would fall within the
exception of section 6.
It is the representation of Foster-Forbes that a glass container factory
requires continuous operation, twenty-four hours a day, seven days a
P.D. 12 55
week, with the exception of three holidays, including Christmas. The
facts show that a glass furnace contains an average of three hundred fifty
tons of molten glass which is kept at a temperature of 2,750 degrees
farenheit. fired by what is called a regenerative system. These furnaces
remain at such a temperature for their entire life, which approximates
five to eight years. Glass is drawn from these furnaces at the ratio of
about half the tonnage capacity daily throughout the life of the furnace
except for the three holidays mentioned. Shutdowns are extremely
costly, because of the high start-up expense, diminish the life of the fur-
nace, and may even cause complete loss of the furnace. Frequent shut-
downs would place such a glass container factory at a severe economic
disadvantage vis-a-vis similar operations elsewhere.
While I would ordinarily decline to express an opinion as to the appli-
cation of a criminal statute to a private corporation, it is clear that you,
as Commissioner, have supervision and control over a department
which has as one of its principal purposes "[pjromoting, developing and
expanding the economy, the commerce, [and] the industry ... of the
commonwealth . . ."' G. L. c. 23A, § 2. Your department has been ac-
tive in the negotiations which have led Foster-Forbes to consider the
Commonwealth as a site for its plant, and continued activity on the part
of the department is dependent upon the answer to the question you
pose. I therefore proceed to answer it on that basis.
An analysis of the applicable statutes provides the short answer to
your question. General Laws, c. 136, § 5 provides:
"Whoever on Sunday keeps open his shop, warehouse,
factory or other place of business, or sells foodstuffs, goods,
wares, merchandise or real estate, or does any manner of
labor, business or work, except works of necessity and char-
ity, shall be punished by a fine of not less than twenty dollars
nor more than one hundred dollars for a first offense, and a
fine of not less than fifty dollars nor more than two hundred
dollars for each subsequent offense, and each unlawful act or
sale shall constitute a separate offense."
General Laws, c. 136, § 6 provides, in pertinent part:
"Section five shall not prohibit the following:
*****
(6) . . . [MJanufacturing processes which for technical
reasons require continuous operation. . . ."
Based on the facts recited supra, it is my opinion that a glass con-
tainer factory is a manufacturing process "which for technical reasons
require[s] continuous operation." I conclude, therefore, that the opera-
tion of such a plant falls within the exception of G. L. c. 136, § 6(6).
Very truly yours,
ROBERT H. QUINN
Attorney General
56 P.D. 12
Number 9 September 13, 1972
Henry Clay, Esquire
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 following question:
"When a question concerning the Constitution of the
United States has been raised in a court of the Common-
wealth and a finding against the individual raising the ques-
tion has been made by the Appeals Court, do the require-
ments of Section 10 of Chapter 740 of the Acts of 1972 or of
any other section of said Act governing the individual's con-
tinuing his appeal render the statute or a portion thereof un-
constitutional for the reason that it restricts further appeal to
the Supreme Judicial Court and may thereby restrict appeal
to the United States Supreme Court?"'
For the reasons hereinafter set forth, I answer the question in the
negative.
General Laws, c. 211 A, §§ 10 and 11, inserted by St. 1972, c. 740. § 1,
provides as follows:
"Section 10.
Subject to such further appellate review by the supreme
judicial court as may be permitted pursuant to section eleven
or otherwise, the appeals court shall have concurrent appel-
late jurisdiction with the supreme judicial court, to the extent
review is otherwise allowable, with respect to a determination
made in the superior court, the land court and the probate
courts, (a) in all civil proceedings at law or in equity without
limit as to the subject matter or amount in controversy: (/?) in
proceedings in the superior court for the review of adminis-
trative determinations; (c) in proceedings in the superior
court relating to mandamus, certiorari and all other extraor-
dinary writs: and (J) in criminal cases, irrespective of
whether sentence has been imposed, except in review of con-
victions for first degree murder where a sentence of death or
life imprisonment has been imposed. A report from the
superior, land or probate courts of any case, in whole or in
part, or any question of law arising therein shall be deemed
within the concurrent appellate jurisdiction of the supreme
court and the appeals court.
Without regard to whether review is by appeal, bill of ex-
ceptions, report or otherwise, appellate review of decisions
made in the superior, land or probate courts, if within the
' By --Seclion 10 of ( hapter 740." I lake you to refer to G. L. c. 21 1, -\. § 10. inserted hy § I of c. 740.
P.D. 12 57
jurisdiction of the appeals court, shall be in the first instance
by the appeals court except in the following cases in which
appellate review shall be directly by the supreme Judicial
court without the necessity of any prior hearing or decision
by the appeals court on the merits of the issues sought to be
reviewed.
(A) Whenever two justices of the supreme judicial court
issue an order for direct review by the supreme judicial court
in any case on appeal, either at the request of one of the par-
ties or at the court's own initiative, upon finding that the
questions to be decided are: (1) questions of first impression
or novel questions of law which should be submitted for final
determination to the supreme judicial court; (2) questions of
law concerning the Constitution of the commonwealth or
questions concerning the Constitution of the United States
which have been raised in a court of the commonwealth; (3)
questions of such public interest that justice requires a final
determination by the supreme judicial court.
(B) Whenever the appeals court as a body or a majority of
the justices of the appeals court considering a particular case
certifies that direct review by the supreme judicial court is in
the public interest.
In each case where appellate review is not within the juris-
diction of the appeals court, appellate review shall be directly .
by the supreme judicial court, unless such case is transferred
by the supreme judicial court to the appeals court for deter-
mination in accordance with section twelve of this chapter.
"Section 1 1.
There shall be no further appellate review by the supreme
judicial court of any matter within the jurisdiction of the ap-
peals court which has been decided by the court, except: —
(a) where a majority of the justices of the appeals court decid-
ing the case, or of the appeals court as a whole, certifies that
the public interest or the interests of justice make desirable a
further appellate review, or (b) where leave to obtain further
appellate review or late review is specifically authorized by
three justices of the supreme judicial court for substantial
reasons affecting the public interest or the interests of justice.
Upon the written order of a majority of the justices of the ap-
peals court, the decision of a panel of the appeals court may
be reviewed and revised by a majority of the justices of the
appeals court. Such a review shall not be a condition prece-
dent to obtaining further appellate review by the supreme ju-
dicial court."
Experience makes manifest that a great many cases, in
which one party or another raises some claim or defense
based on the Constitution of the United States, will not be
58 P.D. 12
considered of such legal significance or public importance as
to warrant further review by the Supreme Judicial Court after
a decision by the Appeals Court. However, the fact that the
Supreme Judicial Court has exercised its discretion by refus-
ing further review in such a case in no way affects the right of
the litigants to seek further review in the Supreme Court of
the United States. Title 28, Section 1257, of the United States
Code provides:
"Final judgments or decrees rendered by the highest court
of a State in which a decision could be had, may be reviewed
by the Supreme Court . . ."' (Emphasis supplied.)
Under this provision, if the jurisdiction of the Supreme Judicial Court
is properly invoked and it declines to review the judgment of the Ap-
peals Court, the Appeals Court is then the highest court in which a deci-
sion could be had. A party would then be free to appeal that decision to
the United States Supreme Court. Minneapolis, St. Paul & Sault Ste
Marie R\. Co. v. Rock, 297 U.S. 410: Prudential Ins. Co. of America v.
Cheek, 259 U.S. 530.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 10 October 10, 1972
Professor Howard M. Emmons
Chairman, Massachusetts Science and
Technology Foundation
Door 10, Lakeside Office Park
Wakefield, Massachusetts 01880
Dear Professor Emmons:
You have requested my opinion whether individual members of the
Board of Governors of the Massachusetts Science and Technology
Foundation (the Foundation) are personally liable to reimburse the
Commonwealth for monies accepted by Board members for Foundation
purposes pursuant to appropriation acts containing so-called "pay back"
provisions. Appropriations have been made by the Legislature to the
Foundation on the condition that the Foundation reimburse the Com-
monwealth for the amounts appropriated. For example. Chapter 514,
section 2, item 3690-0010, the appropriation act funding the Foundation
for fiscal year 1973, provides as follows:
"For the expenses of the Massachusetts Science and
Technology Foundation, as authorized by chapter eight
hundred and forty-three of the acts of nineteen hundred and
sixty-nine; provided, that the foundation shall reimburse the
commonwealth for appropriation made under this item . . .
$100,000." (Emphasis supplied.)
P.D. 12 59
Similar "pay back" provisions are contained in acts funding the
Foundation in past years. Chapter 370, section 2. item 1590-0010 of the
Acts of 1970: Chapter 1003, section 2. item 1590-0010 of the Acts of
1971. For the reasons hereinafter stated, 1 am of the opinion that the
■pay back" provisions at issue impose no personal liability upon the in-
dividual members of the Foundation's Board of Governors to reimburse
the Commonwealth for the amounts appropriated.
The Foundation was created and placed in the Department of Com-
merce and Development pursuant to Chapter 843 of the Acts of 1969.
That act manifests an intent on the part of the Legislature to establish
the Foundation as an independent corporate body capable of both incur-
ring and meeting monetary obligations.
Section 7 of Chapter 843 of the Acts of 1969 provides:
"All moneys received by the Foundation under the author-
ity of this act shall be deemed trust funds, to be held and ap-
plied solely as provided in this act. The Foundation shall, in
any trust agreement, provide for the payment of all revenues
to be received to any officer who, or to any agency, bank or
trust company which, shall act as trustee of such funds and
shall hold and apply the same to the purposes hereof, subject
to such regulations as this act and such trust agreement may
provide.
"All expenses incurred in carrying out the provisions of
this act shall be payable solely from funds provided under the .
authority of this act, and the Foundation shall have no power
to make its obligations payable out of any property or moneys
except those of the Foundation. No obligation of the Founda-
tion shall be a debt of the commonwealth and no liability or
obligation shall be incurred by the Foundation beyond the ex-
tent to which moneys shall have been provided by appropria-
tion or otherwise under the provisions of this act and are
available therefor."
In addition. Section 6(c) empowers the Foundation
"to sue and be sued in its own name and to prosecute and
defend all actions relating to its property and affairs. The
Foundation shall be liable for its debts and obligations, but
the property of the Foundation shall not be subject to at-
tachment nor levied upon by execution or otherwise. Process
may be served upon the treasurer of the Foundation or, in the
absence of the treasurer, upon any member of the governing
board of the Foundation."
Thus, the act provides that the Foundation, as a distinct corporate en-
tity, may incur debts, obligations, and expenses pursuant to its delegated
authority. No language in the act, either expressly or by implication,
imposes a personal liability on the part of individual Board members to
honor any such debts, obligations, and expenses. On the contrary, the
monetary obligations of the Foundation are to be met from monies ap-
60 P.D. 12
propriated to it, or from monies otherwise obtained under the provisions
of the act.
Similarly, the express language of the "pay back" provisions of the
appropriation acts at issue imposes an obligation upon the Foundation as
a distinct corporate entity. It is the Foundation that is charged with
reimbursing the Commonwealth for amounts appropriated to it, and no
such duty is placed upon individual members of its Board of Governors.
A contrary interpretation of the ''pay back" provisions of the appro-
priation acts at issue would conflict with well-established principles of
corporation law. In many respects the Foundation is similar to a corpo-
ration. The Foundation is designated as a "corporate body" (c. 843, § 1
of the Acts of 1969), and like business corporations established pursuant
to G. L. c. 156B, it may enact by-laws (§ 3). hold property (§§ 5b, c, and
6a), adopt a seal (§ 3), and submit by-laws and amendments to the Secre-
tary of State (§ 3). Compare G. L. c. 156B, §§ 9, 17, 6, 74.* Ahhough
they are denominated the Foundation's "governing board" by c. 843, §
3 of the Acts of 1969, the members thereof, for all practical purposes,
constitute a board of directors of a "corporation." Chapter 843, § 3 pro-
vides that the Foundation "shall be governed and its corporate powers
exercised by a board of nine members." The Board of Governors is re-
sponsible for managing the business of the Foundation in much the same
way that a board of directors is required by statute to manage the busi-
ness of a business corporation. G. L. c. 156B, § 47.
Personal liability may attach to individual corporate directors who vio-
late specific statutory proscriptions. E.g., G. L. c. 156B, §§ 60-63. In
addition to liability expressly imposed by statute, a corporate director
may be liable for breaches of his fiduciary duty of loyalty to a business
corporation, and for failure to reasonably protect and preserve the in-
terests of the corporation. See generally, Fletcher, Cyclopedia Corpora-
tions, Vol. 3, § 990 et seg.; Yerrall, Common Law Duties of Directors
of Corporations and Remedies for Breaches Thereof in Massachusetts,
21 Mass. L. Q. 50 (1936). An interpretation of the "pay back" provi-
sions of the appropriation acts at issue requiring individual members of
the Foundation's Board of Governors to reimburse the Commonwealth
for amounts appropriated would constitute a departure from these tradi-
tional limitations placed upon the individual liability of corporate direc-
tors.
My opinion is, of course, limited to appropriation acts containing
"pay back" provisions identical to the provision, quoted supra, in c.
514, § 2, item 3690-0010, the act funding the Foundation for the current
fiscal year. I might add that the Legislature has continued to fund the
Foundation despite the fact that the Commonwealth has never been
reimbursed for the amounts appropriated. Such continued funding sug-
* Entities possessing corporate powers have heen considered hy courts to be in tact corporations, although not specifi-
cally denominated as such, hdiirih School DiMiici in Riinifonl. v. WooJ. 1.^ Mass. I.'5X. 162-6.''; tJaiuink v. Loiii.willc
R.R. Co.. M.S U.S. 40.^. 409; OLcaiy v. Board of Fire ami Water Commis\ioiu-rs. 79 Mich. 281 . 44 N.W. 608; G/vm.v v.
Krntiirky Hoaril of \houiKcrs. 105 Ky. 840. 49 S.E. 458.
P.O. 12 61
gests that the Legislature is mindful that the Foundation requires state
support until such time as it is able to be self-supporting.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 11 November 15, 1972
Mrs. Mabel A. Campbell
Director of Civil Service
294 Washington Street
Boston, Massachusetts 02108
Dear Mrs. Campbell:
You have requested my opinion whether the present statutory and
regulatory provisions which require that applicants for civil service em-
ployment be United States citizens are constitutional, and, if not,
whether you may insert a statement on examination announcements that
applicants must reside in the United States. You further ask whether the
requirements relating to domicile are constitutional. For the reasons
stated hereinafter, I conclude that the statutory and regulatory require-
ments that applicants for civil service employment be citizens of the
Commonwealth or of its cities and towns are unconstitutional.
General Laws, c. 31, § 12. provides, in pertinent part:
"The director shall not place on any such list [for civil
service employment] any person not a citizen of the United
States."
Civil Service Rule 4 provides, in pertinent part:
"An applicant at the time of filing application for any office
or position to which these rules apply must be a citizen of the
United States who has domiciled in the Commonwealth for
one year next preceding the date of filing his application. An
applicant for an office or position in the service of a city must
also have domiciled in the city in which he seeks service for
six months next preceding the date of filing his application.
General Laws, c. 31. § 19 provides:
"Except as otherwise provided by law, in all positions,
employments and work in any branch of the service of the
commonwealth, or of any county, city, town or district
therein, persons who are domiciled in the commonwealth
shall be given preference; provided, when the director waives
domiciliary requirements in accordance with the civil service
rules or the provisions of section eight B, any person who
does not have a domicile in the commonwealth and who
otherwise qualifies shall be placed on the eligible list in ac-
cordance with the civil service laws and rules."
62 P.D. 12
Resolution of your questions requires a brief review of recent deci-
sions of the Supreme Court of the United States involving the validity of
durational residency and citizenship requirements as they relate to gov-
ernmental benefits, privileges or rights. In Shapiro v. Thompson, 394
U.S. 618, the Court held that durational residency requirements are un-
constitutional unless the State can demonstrate that such requirements
are ''necessary to promote a compelling governmental interest." Id. at
634, emphasis in original. Recently, in Dunn v. Blumstein, 405 U.S. 330,
the Court struck down a Tennessee durational residency requirement for
voting and reaffirmed the ''compelling governmental interest" standard.
The Court stated:
"It is not sufficient for the State to show that durational
residency requirements further a very substantial state in-
terest. In pursuing that important interest, the State cannot
choose means which unnecessarily burden or restrict con-
stitutionally protected activity . . . And if there are other,
reasonable ways to achieve those goals with a lesser burden
on constitutionally protected activity, a State may not choose
the way of greater interference. If it acts at all, it must choose
'less drastic means' . . ." /(/. at 343.
These principles have been carried out in decisions of the lower Fed-
eral courts. For example, in Stevens v. Campbell, 332 F. Supp. 102 (D.
Mass. 1971), the District Court struck down the Massachusetts statute
which provided that veterans must satisfy certain domicile or residence
requirements in order to obtain veterans' preference for civil service
employment. While not expressing any opinion as to Rule 4, since that
issue was not before the Court, the Court did state in the course of its
opinion that "it would not be constitutionally permissible for Massachu-
setts to make a right or privilege depend upon the mere fact that the re-
cipient was one of Massachusetts' own people who presumptively had
contributed his taxes or services to the Commonwealth. Shapiro v.
Thompson, 394 U.S. 618, 632-633 (1969)." Id. at 106.
In Graham v. Richardson, 403 U.S. 365, a unanimous Supreme Court
declared that state statutes which denied welfare benefits to resident
aliens or to aliens who had not resided within a state for a specified
period are violative of the Equal Protection Clause and interfered with
the exclusive control of immigration exercised by the Federal govern-
ment. Speaking for the Court, Mr. Justice Blackmun stated:
"State alien residency requirements that either deny wel-
fare benefits to noncitizens or condition them on longtime res-
idency, equate with the assertion of a right, inconsistent with
federal policy, to deny entrance and abode. Since such laws
encroach upon exclusive federal power, they are constitu-
tionally impermissible." Id. at 380.
The Graham decision has been carried to its logical extension in so
far as governmental employment is concerned by a three judge Federal
District Court sitting in New York. In Dougall v. Sugarman, 339 F.
P.D. 12 63
Supp. 906 (S.D. N.Y. 1971 ), the Court struck down that provision of the
New York Civil Service law which required that applicants for civil
service employment be United States citizens. Citing Grahani. the
Court concluded that the requirement was not justified on either loyalty
or efficiency grounds and that it conflicted with the Equal Protection
Clause of the Fourteenth Amendment, the Supremacy Clause of the
Federal Constitution and the provisions of 42 U.S.C. § 1981. While the
Supreme Court has noted probable jurisdiction in the case. 407 U.S.
908. it is my view that the decision of the District Court will be affirmed
on appeal.
The cases to which I have referred inescapably lead to the conclusion
that durational residency and citizenship requirements arbitrarily im-
posed as a condition of civil service employment are unconstitutional.
Referring specifically to your question, it is my opinion that you may not
insert any statement on examination announcements that applicants
must be citizens of the United States. While it might be desirable to im-
pose a requirement that applicants be residents of the United States at
the time of application, 1 find that no such requirement is imposed at this
time either by statute or by rule of the Commission. The Civil Service
Commission should promptly amend its Rule 4 in this respect, if such a
requirement is to be imposed in the future. In this respect, the Commis-
sion should consider whether such a requirement is necessary to pro-
mote a compelling governmental interest, and, if it is in some case, what
criteria should be employed by the Director in imposing it. Any amend-
ment to the Rule should reflect the criteria to be used.
With respect to your question concerning domicile, it is my opinion
that you are prohibited from restricting entrance to any examination on
the basis of domicile or from according preference on eligible lists on the
basis of domicile on the same bases outlined above.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 12 ^ December 8, 1972
Honorable Miles Mahoney
Commissioner of Community Affairs
Leverett Saltonstall Building
100 Cambridge Street
Boston. Massachusetts 02202
Dear Commissioner Mahoney:
You have requested my opinion whether the urban renewal plan for
the proposed Park Plaza urban renewal project, which has recently been
resubmitted to your Department, is properly before your Department
without the Mayor and City Council of the City of Boston having taken
any further action thereon. You state that in June, 1972 your Depart-
64 P.D. 12
ment determined, after a public hearing, that it was unable to make cer-
tain findings required by G. L. c. 12 IB, § 48 and, therefore, disapproved
the Park Plaza urban renewal plan. In making this decision, you inform
me that you relied upon and referred to the ''Final Project — Urban
Renewal Plan," the supporting documentation, the relocation plan, the
cooperation agreement, the resolution adopted by the City Council, and
the letter of intent between Urban Associates and the BRA. You further
state that the ''Final Project Report — Urban Renewal Plan" included
in the Boston Redevelopment Authority's re-submission for the pro-
posed Park Plaza project is identical to that earlier approved by the
Mayor and the City Council, while various of the other documents, pre-
viously referred to, differ in certain respects. Since it is not the province
of the Attorney General to determine questions of fact, I am required to
accept the facts as you state them. Accordingly, relying on your express
representation that the "Final Project Report — Urban Renewal Plan"
remains identical, I proceed to answer your question. October 16, 1895,
Op. Atty. Gen. 275; June 3, 1897, Op. Atty. Gen. 462.
The statute governing approval of urban renewal plans, G. L. c. 121B,
§ 48, states in pertinent part:
"A plan which has not been approved by the department
when submitted may be again submitted to it with such mod-
ifications, supporting data or arguments as are necessary to
meet its objections."
It is of course an established principle of statutory construction that a
statute must be construed as it is written. C/7v Council of Peabody v.
Board of Appeals of Peabody, 1971 Mass. Adv. Sh. 1881, \^^2; Harvey
Alan Gregg, Jr. Foundation v. Commissioner of Corporations and
Taxation, 330 Mass. 538, 544.
It appears from your request that once you disapproved the urban re-
newal plan, the local redevelopment authority took steps to meet your
objections to the plan. Those steps included changes in the supporting
documents submitted with the original "Final Project Report — Urban
Renewal Plan," and those supporting documents, modified and changed
in order to meet your objections, have now been submitted along with
the "Final Project Report — Urban Renewal Plan" which has, as you
have stated, remained unchanged.
Under the circumstances, I find no basis in the statute for requiring
any further action by the municipal officers who approved the "Final
Project Report — Urban Renewal Plan" in the first instance. To require
further municipal action where the plan itself remains unchanged is a re-
sult which should not be attributed to the Legislature. Haines v. Town
Manager of Mansfield, 320 Mass. 140, 142; McCarthy v. Woburn Hous-
ing Authority, 341 Mass. 539. Compare September 10, 1957, Op. Atty.
Gen. 23. Cf. Commissioner of the Department of Community Affairs v.
Boston Redevelopment Authority, and others, 1972 Mass. Adv.
Sh. , , (Slip opinion, p. 18), where the Court stated "[t]hat this
silence in the statute was intentional is suggested . . ."
P.D. 12 65
In conclusion, then, accepting the facts as you recite them, it is my
opinion that you may proceed to approve or disapprove the resubmis-
sion of the Park Plaza urban renewal plan which is now before you
without first referring the same to the Mayor and City Council of the
City of Boston.
I intimate no opinion whatsoever as to the decision which you should
make in your consideration of the resubmitted plan. To do so would be
for me to usurp the legislative prerogative and obligation which is yours
by virtue of the office you hold, to render proper decisions within the
letter and spirit of the Commonwealth's urban renewal statutes.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 13 December 12, 1972
Honorable John F. Kehoe, Jr.
Commissioner of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Dear Commissioner:
You have requested my opinion whether St. 1972, c. 684, §§ 59, 60
requires the Department of Public Safety to collect fees from both the
Commonwealth and private builders and owners of property for certifi-
cates granted pursuant to G. L. c. 143, §§ 15 and 28. Specifically you
ask:
(1) Is the Department required to accept a fee prior to the
issuance of a "certificate of approval" or "specification of
requirements" by a local "supervisor of plans" for a building
or structure under said local supervisor's jurisdiction pur-
suant to G. L. c. 143, § 15?
(2) Is the Department required to accept a fee prior to the
issuance of a "certificate" by a local "inspector of buildings"
for a building or structure under said local "inspector's juris-
diction" pursuant to G. L. c. 143, § 28?
(3) Is the Department required to charge a fee for the ap-
proval of plans and specifications for buildings owned or oc-
cupied by the Commonwealth or any of its political subdivi-
sions pursuant to G. L. c. 143, § 15?
(4) Is the Department required to charge a fee for the in-
spection of buildings owned or occupied by the Common-
wealth or any of its political subdivisions pursuant to G. L. c.
143, § 28?
General Laws, c. 143, § 15 requires the issuance of a "certificate of
approval" or "specification of requirements" prior to the erection or
alteration of any public building. Similarly, G. L. c. 143, § 28 requires
66 P.D. 12
the periodic issuance of ''certificates" by inspectors for all buildings and
structures within their jurisdictions. St. 1972, c. 684. §§ 59, 60 provides
that both the "certificate of approval or specification of requirements"
required by G. L. c. 143, § 15 and the "certificate" required by G. L. c.
143, § 28 ""shall"' not issue unless a prescribed fee is paid to the Com-
missioner.
In 1939, one of my predecessors rendered an opinion to the then Di-
rector of the Board of Registration of Hairdressers, which stated lan-
guage similar to St. 1972, c. 684, §§ 59, 60 was mandatory and indicated
payment of the required fee operated as a condition precedent to is-
suance of the required certificate. 1938-39 Op. Atty. Gen. 111. Another
of my predecessors rendered a further opinion that the nonpayment of a
fee will render the issuance of a license void. 6 Op. Atty. Gen. 663. I
interpret the provisions of St. 1972, c. 684, §§ 59, 60 in accordance with
the views expressed in both of those opinions and am of the opinion that
the word "shall" as used in the 1972 amendments renders payment of
the prescribed fee mandatory prior to the issuance of a "certificate of
approval, specification of requirement" and "certificate" provided in G.
L. c. 143, §§ 15, 28. Accordingly, I answer your questions one and two
in the affirmative.
Your third and fourth questions ask whether the fees required by St.
1972, c. 684, §§ 59. 60 apply to buildings owned or occupied by the
Commonwealth or any of its political subdivisions. In a recent opinion I
noted that the regulation and inspection of buildings maintained by the
Commonwealth, except the State House, is governed by Chapter 143 of
the General Laws. Op. Atty. Gen. 71/72-36. The first sentence of § 2 A
of said chapter provides:
"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.)
It is well established that the above-quoted section has fashioned an
exception to the general principle of law that statutes are not to be inter-
preted so as to impose a burden upon the sovereign, since a clear legisla-
tive mandate exists authorizing the Department to regulate and inspect
certain buildings owned and operated by the Commonwealth. See Op.
Atty. Gen. 71/72-36; 1967 Op. Atty. Gen. 221 (electrical wiring); 1961
Op. Atty. Gen. 136 (gas fittings); 1962 Op. Atty. Gen. 74 (gas fittings);
compare, Medford v. Marinucci Bros, & Co., Inc., 344 Mass. 50, 55-56
citing Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440; 1955
Op. Atty. Gen. 100. I note the express language of G. L. c. 143, § 2A
P.D. 12 67
applies the provisions of Chapter 143 to certain buildings under the
Commonwealth's control so as to provide for the safety of persons oc-
cupying such buildings. Accordingly, opinions of my predecessors and
myself have interpreted the scope of section 2A to include a broad vari-
ety of inspections of buildings under the Commonwealth's control. See,
e.g.. Op. Atty. Gen. 71/72-36; 1967 Op. Atty. Gen. 221. However, in
my opinion the fees exacted for certificates pursuant to St. 1972, c. 684,
§§ 59, 60 do not directly relate to the promotion of public safety, but
rather serve to underwrite the normal expenses incidental to a system of
registration and inspection and therefore fall outside of the scope of sec-
tion 2A. It is also my opinion that requiring agencies of the Common-
wealth to transfer funds in payment of certificate fees prior to undertak-
ing necessary public projects would constitute the type of burden prohi-
bited in Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440. It
is my further opinion that where the Commonwealth is exempt from
licensing fee provisions similar to St. 1972, c. 684, §§ 59, 60, an indepen-
dent contractor, under contract to accomplish a governmental project, is
likewise exempt from such a provision. Medford v. Marinucci Bros. &
Co.. Inc., 344 Mass. 50, 57-58; 1967 Op. Atty. Gen. 221; 1955 Op. Atty.
Gen. 100. I therefore answer your questions 3 and 4 in the negative.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 14 December 21, 1972
Mr. Gordon A. McGill, Secretary
Emergency Finance Board
State House
Boston, Massachusetts 02133
Dear Sir:
You have requested my opinion on the following question:
''Is . . . [the Emergency Finance] Board required to act
upon loan authorizations for approved school projects, under
the provisions of Section 8 of Chapter 645 of the Acts of
1948, when the estimated school construction grant — as de-
fined in Section 7 of said Chapter 645 of the Acts of 1948, as
amended by Chapter 1010 of the Acts of 1971 — equals or
exceeds the amount of the loan authorization?"
It is my opinion, for the reasons stated hereinafter, that your question
must be answered in the negative.
Section 8 of Chapter 645 of the Acts of 1948 provides in pertinent
part:
"Any city or town which has received, in accordance with
the provisions of the preceding section, notice of approval
and an estimate of the amount of school construction grant to
68 P.D. 12
which such city or town may be entitled, may, during the
time this chapter is in effect, borrow from time to time for
said approved school project an amount not exceeding said
estimated grant, or such larger amount as may be approved
by the emergency finance board ..."
Section 7 of Chapter 645 of the Acts of 1948, as amended by Chapter
1010 of the Acts of 1971, provides, in pertinent part:
"Any city, town, regional school district or county may
apply to the [school building assistance] com.mission for a
school construction grant to meet in part the cost of an ap-
proved school project. Such cost shall include interest paid or
payable by such city, town, regional school district or county
on any bonds or notes to finance such project."
The Emergency Finance Board's responsibility is clearly spelled out
in section 8 of Chapter 645 of the Acts of 1948. A city or town that bor-
rows a sum of money less than or equal to the amount of the authorized
school construction grant need not request the approval of the Board.
The Board is required to act upon a loan authorization only when the
authorization exceeds the school construction grant.
This procedure reflects the long standing legislative and judicial con-
cern with respect to municipal finance and indebtedness. Section 10 of c.
44 of the General Laws, the municipal finance law, prohibits a city from
authorizing indebtedness in excess oflVi^c of its equalized valuation and
a town from authorizing indebtedness exceeding 5% of its equalized val-
uation, without the approval of the Emergency Finance Board. More
than half a century ago, the Supreme Judicial Court said: "The manifest
purpose of the framers of the [Municipal Finance] act was to set rigid
barriers against expenditures in excess of appropriations, . . . and in
general to put cities upon a sound financial basis so far as these ends can
be achieved by legislation." Flood v. Hodges, 231 Mass. 252 at 256.
Flood v. Hodges was later cited with approval in Rich & Son Construc-
tion Co., Inc. V. Saugiis, 335 Mass. 304, at 307.
Chapter 645 of the Acts of 1948 is not a departure from this policy.
Section 8 of that chapter (as amended by St. 1951. c. 447) provides that
"[i]ndebtedness incurred under this act shall be in excess of the statu-
tory limit, but shall, except as herein provided, be subject to the applic-
able provisions of chapter forty-four of the General Laws ..." Any
community incurring indebtedness for school construction is subject to
all the requirements of Chapter 44, with one exception. The debt ceiling
is not controlled by the inflexible 2l/2%-5% standard, but the Emergency
Finance Board assumes the responsibility of reviewing each
community's ability to meet its proposed obligation when the bond issue
exceeds the estimated grant.
Chapter 1010 of the Acts of 1971 amended section 7 of Chapter 645 of
the Acts of 1948 by including the interest charges on any bond issue in
the cost of the school construction. Chapter 1010 also amended section 9
of Chapter 645 of the Acts of 1948 by fixing the grant for all com-
P.D. 12 69
munities, except those within designated depressed areas, at 50% of the
final approved cost. Cities and towns within designated depressed areas
are allowed a maximum grant of 65% of the school cost.
1 note in passing that the Legislature has not been unwilling to modify
Chapter 645 of the Acts of 1948 where the same was required. There
have been no less than six amendments to Chapter 645 in the last four
years and more than a dozen since 1962. Each amendment has given the
Legislature ample opportunity to correct any inconsistencies in the Act
as previously amended.
Accordingly, it is my opinion that the Emergency Finance Board must
continue to follow the unequivocal legislative mandate of Chapter 645 of
the Acts of 1948. as most recently amended, and pass only on those
school bond issues which exceed the estimated school construction
grant.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 15 January 9, 1973
Honorable Robert Q. Crane
Treasurer and Receiver General
Chairman. State Board of Retirement
73 Tremont Street
Boston, Massachusetts 02108
Dear Chairman Crane:
You have requested my opinion whether widows of public employees
who had retired under the provisions of G. L. c. 32, §§ 56 and 57 are
entitled to the annuities provided for in the recent amendment to G. L.
c. 32, § 101, which provides for an annuity to widows of public em-
ployees "who had been retired for ordinary disability under provisions
of this chapter." St. 1972. c. 793. § 5 (effective January 1, 1973). Upon
consideration of the relevant statutory provisions, my answer is in the
affirmative.
The receipt of annuities by widows of certain public employees is
governed by G. L. c. 32, § 101, as amended, which provides, in perti-
nent part:
"In the event of the death of any former employee who had
been retired under the provisions of this chapter after having
been found to be incapacitated for further duty by reason of
injuries sustained while in the performance of his duties, or
who had been retired for ordinary disability under provisions
of this chapter, under which retirement he was unable to pro-
vide for any annual allowance to be paid his widow at the
lime of his death, there shall be paid to such widow an annual
70 P.D. 12
allowance in the amount of sixteen hundred and eighty dol-
lars, subject to the provisions of paragraph (e) section 102, for
as long as she remains unremarried ..."
The legislative intent of the 1972 amendment was to assist widows of
public employees "who had been retired for ordinary disability under
provisions of this chapter." Cf. Johnson v. Milton, 349 Mass. 736, 740.
While G. L. c. 32, § 6 governs the retirement of "incapacitated" public
employees generally, §§ 56 and 57 govern the retirement of "incapaci-
tated" public employees who are "veterans" as defined in § 1 of c. 32.
As such, the latter provisions, as well as § 6, are provisions of c. 32 per-
taining to the retirement of public employees for "ordinary disability."
Therefore, widows of public employees retired under §§ 56 and 57 of c.
32 are entitled to the allowances provided for in c. 32, § 101, as
amended.
Very truly yours,
ROBERT H. QUINN
Attornex General
Number 16 January 9, 1973
Honorable John F. Kehoe, Jr.
Commissioner of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Dear Commissioner Kehoe:
You have requested my opinion whether a Detective Lieutenant In-
spector, while assigned to the Division of Fire Prevention, is entitled to
the benefits of G. L. c. 41, § 108L, as inserted by Chapter 835 of the
Acts of 1970. Since it is not clear whether your question refers to tem-
porary or permanent assignments, I must answer your question in two
parts.
First, it is my opinion that a Detective Lieutenant Inspector, while
permanently assigned to the Division of Fire Prevention, is not entitled
to the benefits of G. L. c. 41, § 108L for the reasons hereinafter stated.
General Laws, c. 41, § 108L, the police career incentive pay act, pro-
vides, in pertinent part:
"There is hereby established a career incentive pay pro-
gram offering base salary increases to regular full-time mem-
bers of the . . . division of state police in the department of
public safety ... as a reward for furthering their education in
the field of police work."
Statutes must be construed as they are enacted and each word or
phrase is presumed to have its ordinary meaning. Davey Bros. Inc. v.
Stop & Shop, Inc., 351 Mass. 59, 63. There can be no doubt that the
Legislature intended that the police career incentive program apply only
P.D. 12 71
to policemen. There is also no ambiguity in regard to employees of the
Department of Public Safety. General Laws, c. 41. § 108L specifically
and exclusively refers to "regular full-time members of . . . the division
of state police in the department of public safety."' The statute does not
refer to any members of the Department of Public Safety who are not
assigned to the Division of State Police on a regular full-time basis. Ac-
cordingly, regular full-time employees of any other division of the De-
partment of Public Safety, including the Division of Fire Prevention, are
not eligible for benefits under c. 41, § 108L.
You have informed me that Detective Lieutenant Inspectors assigned
to the Division of Fire Prevention are charged with enforcing all the
laws of the Commonwealth and regulations of the Department of Public
Safety, but concentrate on fire prevention and investigating arson. It is
clear that the Division of State Police does not share the same primary
and inclusive responsibility for arson cases but must be concerned in the
first instance with the total crime spectrum, including fire prevention. It
follows that personnel assigned to the Division of Fire Prevention do
not have the same duties and responsibilities as members of the Division
of State Police but have limited duties. However, you have also in-
formed me that perhaps 75%-85% of the State Police Detective Lieuten-
ant Inspectors are transferred to the Division of Fire Prevention at some
point in their career and cannot refuse such an assignment.
It may appear harsh that the Legislature distinguished between Detec-
tive Lieutenant Inspectors assigned to the Division of State Police and
Detective Lieutenant Inspectors assigned to the Division of Fire Pre-
vention in enacting G. L. c. 41. § 108L. One arguably anomalous result
follows when a Detective Lieutenant Inspector is barred from continu-
ing the police career incentive program by an assignment from the Divi-
sion of State Police to the Division of Fire Prevention. However, a stat-
ute cannot be interpreted to avoid hardship if the statutory language is
clear and unambiguous. "To stretch the meaning of a statute so as to
adjust an alleged injustice, inequity or hardship could cause a multipli-
city of interpretations as each alleged injustice, inequity or hardship
arose." Town of Milton v. Metropolitan District Commission. 342
Mass. 222, 227. Only the Legislature can modify the law.
Secondly, it is my opinion that a Detective Lieutenant Inspector per-
manently attached to the Division of State Police, who is temporarily
assigned to the Division of Fire Prevention, is entitled to the benefits of
G. L. c. 41, § I08L.
You have informed me that State Detective Lieutenant Inspectors as-
signed to the Division of State Police are occasionally temporarily trans-
ferred to the Division of Fire Prevention. You have also stated that a
Detective Lieutenant Inspector remains on the payroll, and thus under
the administrative control, of the Division of State Police. Under those
circumstances, it is my opinion that the Detective Lieutenant Inspector
72 P.D. 12
has not lost his status as a regular full-time employee of the Division of
State Police and is entitled to the benefits of G. L. c. 41, § 108L.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 17 January 11, 1973
Honorable Charles N. Collatos
Commissioner of Veterans' Services
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Commissioner Collatos:
You have requested my opinion relative to applications received at
local veterans' services offices requesting assistance for the payment of
expenses incurred for the care, attendance, and instruction of mentally
retarded children of veterans who are in special schools.
Specifically, you ask the following question:
"May the veterans' agent of a town make payment or may
the Commissioner of Veterans' Services, acting under the
provisions of Chapter 115 [of the General Laws], authorize
payment by a veterans' agent of such sums as are necessary
to provide such special care and instruction in a private
school or any other place where such care and instruction are
furnished?"
Apart from any constitutional questions that arise by implication from
your letter, it is my opinion that you may not provide the assistance re-
quested except under the circumstances outlined in the last paragraph of
this opinion.
A veteran is entitled to receive "veterans' benefits" in " . . . [o]nIy
such amounts ... as [are] necessary to afford him sufficient relief or
support . . ." G. L. c. 115, § 5, as amended by St. 1968, c. 402. It is
axiomatic that a veteran be in need of "relief or support" before he is
eligible to receive "veterans' benefits." In fact, a veteran "... who is
able to support himself or who is in receipt of income from any source
sufficient for his support . . ." is not eligible to receive "veterans' bene-
fits." IhicL It follows that a veteran is not in need of "relief or support"
when the relief requested is available to him from another source other
than public welfare.*
A review of the statutes relating to education reveals that appropriate
relief may be available from other sources. General Laws, c. 71, § 46 (as
amended by St. 1968, c. 297) provides that every town and regional
school district having five or more mentally retarded children is required
to establish special classes for educable and trainable mentally retarded
I he piiipovc ol \elcr.m\' henellls is to panicle veler^ins with .ilil ^ind .issisi.cnce thioiiyh ,i iTiediuni other th.in public
welfiiie. O/K ^m. Ccn.. Oct. 25. I94S. p. 43.
P.O. 12 73
children. General Laws, c. 76. § 12 provides that it" a child resides in a
town that has not established such special classes, he may attend special
classes in another public school at the expense of his town.
The availability of special classes for the care and instruction of men-
tally retarded children in the public schools and the attendant statutory
authorization for transportation expenses to such classes appears to
provide relief to veterans from a source other than veterans' benefits.
Accordingly, it is my opinion that the statutory test that veterans be in
need of "relief or support" is not met where classes in public schools
are available to the children of veterans.
However. I am advised that the statutory authorization for public
school classes is not fully implemented in some cases, either from a lack
of appropriations or for other reasons. In addition, it appears that public
instruction, when offered, may not be on a par with that available from
private schools. In those cases, it is my opinion that veterans* benefits
may be paid for private school care and instruction where it can be dem-
onstrated either (1) that public classes are not available to the veteran's
child or (2) that the public care and instruction is inferior to that offered
on a private basis and the child requires the higher level of care and in-
struction. Such determinations are questions of fact and should be made
by the local veteran's agent of the city or town involved. Such a con-
struction of the statute, in my view, fully implements the public policy of
this Commonwealth that mentally retarded or emotionally disturbed
children be afforded the best possible care and instruction.
Verv truly yours.
ROBERT H. QUINN
Attorney (iciwrcil
Number 18 March 2. 1973
Honorable Robert Q. Crane
Treasurer and Receiver General
State House
Boston, Massachusetts 0213.3
Dear Treasurer Crane:
You have asked my opinion as to the constitutionality of the first sen-
tence in section 64 inserted into G. L. c. 29 by St. 1972. c. 807. § 3,
which reads:
'^Tlie state treasurer may contract with an employee to
defer a portion of that employee's income and may subse-
quently with the consent of the employee, purchase a life in-
surance or annuity contract, for the purpose of funding a de-
ferred compensation program for the employee, from any life
underwriter duly licensed by the commonwealth who repre-
sents an insurance company licensed to contract business in
the commonwealth ..." (Emphasis supplied.)
74 P.D. 12
You have further inquired whether, if the answer is that the statute is
constitutional, the first sentence means "The State Treasurer may con-
tract for the Commonwealth of Massachusetts with an employee to
defer a portion of the employee's income."
In effect, § 64, inserted into G. L. c. 29 by St. 1972. c. 807, § 3, deals
with fringe benefits for employees for a life insurance or annuity con-
tract or for deferred compensation, paid for by the employee out of de-
ferred income. This is but an extension of other types of fringe benefits
which are clearly contractual in nature, as between the Commonwealth
and its employee; cf. pensions (G. L. c. 32, §§ 3(2), 25(5) ); life insur-
ance (G. L. c. 32A, §§ 5, 6); and which involve deductions from payroll,
e.g. pensions (G. L. c. 32, § 22); life insurance (G. L. c. 32A, § 8(a) ). A
procedure similar to that in § 64 has been in force in the Commonwealth
since 1963. (See St. 1963, c. 466, § 2, which added a sentence to G. L. c.
29, § 31 relating to the payment of premiums for an annuity contract for
any employee of the Department of Education or certain educational in-
stitutions.
There would seem to be no constitutional limitation on the power of
the state to so contract with its employees, and public policy would
seem to support it.
With reference to your second question, it would appear that the pro-
vision that the "State treasurer may contract" clearly means "on behalf
of the commonwealth." Cf. G. L. c. 29, § 35, which impliedly permits a
note, bank mortgage or security belonging to the Commonwealth to be
made to the State Treasurer by name and, if so made, permits him or
any successor in office to assign, transfer or discharge it — obviously for
the benefit of the Commonwealth.
I conclude, therefore, that St. 1972, c. 807, § 3 is constitutional, and
that the provision therein that "The State treasurer may contract with
an employee ..." means "The state treasurer may contract on behalf of
the commonwealth with an employee ..."
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 19 March 5, 1973
Mr. William F. Daigle. Jr.
Actinji Chairman
Retirement Law Commission
15 School Street
Boston, Massachusetts 02108
Dear Mr. Daigle:
Your predecessor requested my review of the ruling incorporated in
Op. Atty. Gen., January 10, 1969, pp. 92-93, which addressed itself to
P.D. 12 75
the method to be used in computing the compensation to be paid to
former state employees who. while receiving a pension, have returned to
active state service. In particular, clarification was sought as to G. L. c.
32, § 91(b) which authorizes the reemployment of former public em-
ployees, both state and local, and provides, in pertinent part, that any
such employee may be reemployed in public service,
■"for not more than ninety days, in the aggregate, in any
calendar year; provided that the earnings therefrom when
added to any pension or retirement allowance he is receiving
do not exceed the salary that is being paid for the position
from which he was retired or in which his employment was
terminated."
The question in Op. Atty. Gen., January 10, 1969. pp. 92-93 was
whether such a reemployed retiree is entitled to —
(1) Only that portion of the full weekly salary of the posi-
tion in which he is reemployed which, when added to his pen-
sion calculated on a weekly basis, will equal the weekly salary
currently being paid for his former position, or —
(2) The full weekly salary of the position in which he is re-
employed, until he has received an aggregate amount which,
when added to his pension calculated on an annual basis, will
equal the annual salary currently being paid for his former
position.
In answering that question, the then Attorney General stated. "I am
of the view that the first interpretation, namely, that which requires pro-
ration, is the correct one." p. 93. and concluded accordingly, that "the
Legislature contemplated that all calculations should be made on the
same base as pensions and salaries," p. 93.
In your predecessor's opinion request he informed me, by way of
background, that "it appears that the ruling which has been made for the
reemployment of State employees is completely different from the ruling
that has been reached in all of the cities and towns in the Common-
wealth with the exception of one city." He stated, in essence, that when
a retired person is reemployed by a city or town his remuneration is cal-
culated on the basis of alternative 2, supra, whereas retired persons re-
employed by the Commonwealth are remunerated on the basis of alter-
native 1. supra. As a result of this alleged discrepant practice, he ob-
served that "we have a situation where some persons who are reem-
ployed are receiving considerably more for their services than others,"
and that such a discrepancy was, in his words, "utterly unfair and . . .
completely at cross purposes with the intent of the Legislature ..."
when the legislation was enacted. I now proceed to a reconsideration
and review of the earlier opinion.
That opinion offered the following three observations in justification
of its conclusion:
(1) "[SJalary ... is ordinarily fixed on a weekly (or in a
few cases a monthly) basis," p. 93;
76 P.D. 12
(2) "Pensions are payable on a monthly basis and cease
with the last full monthly payment due prior to a retired
employee's death, with a pro rata additional payment allow-
able for any period of less than a full month/" p. 93; and
(3) "[SJince there is an absolute 90-day working limit, it
seems unlikely that the Legislature intended that the earnings
limit be based on a full annual period," p. 93."
In my opinion, none of the foregoing is particularly compelling or per-
suasive. With respect to the first observation, while state salaries are or-
dinarily paid on a weekly, bi-weekly or monthly basis, such a practice is
simply one of convenience for state employees and the General Salary
Schedule in G. L. c. 30, § 46 merely facilitates an informed and uniform
salary disbursement procedure. Certainly, G. L. c. 30, § 46, standing
alone, does not preclude the interpretation that the term "salary." as
contemplated by the Legislature in G. L. c. 32. § 91, was to be calcu-
lated on an annual basis. I find the second observation irrelevant. With
respect to the third observation offered. I cannot agree with the asser-
tion that there is an absolute 90-day working limit. To the contrary, sub-
section (a) of § 91 provides for indeterminate reemployment in a "confi-
dential capacity" and for reemployment for "emergency service" for a
period of up to one year and, in certain circumstances, for periods up to
five years. However, even if, for the sake of argument, 1 were to find
the aforementioned three observations convincmg or meritorious, I
could not concur in the conclusion reached in that Opinion because of
subsection (c) of § 91.
Subsection (c) of § 91 provides, in pertinent part, that each reem-
ployed person shall
"certify . . . the number of days which he has been em-
ployed in any . . . calendar year and the amount of earnings
therefrom, and if the number of days exceed ninety in the
aggregate, he shall not be employed, or if the eanuni>s there-
from exceed the amount allowable .... he shall return . . .
all such earnings as are in excess of . . . [the] allowable
amount." (Emphasis supplied.)
The opinion in question summarily dismisses the foregoing provision
by stating that it "may be regarded simply as a safeguard against possi-
ble overpayments and does not . . . have any controlling effect on the
interpretation to be given to subsection (b)". p. 93. But overpayment is
possible only if the employee is receiving the full weekly salary of the
position in which he is reemployed. Under that alternative it would be
possible for an employee, at some point, depending on how many days
he worked, to accumulate enough weekly remuneration to surpass,
when added to his annual pension, the present annual salary of his
former position. And it is precisely because such a possibility is real and
ever-present that the Legislature saw the need for enacting of subsection
(c) of § 91. To give the contrary interpretation would be to render that
subsection mere surplusage, a result which the Legislature could not
P.D. 12 77
have intended. Every part of a legislative enactment is to be given force
and effect, so far as is reasonably practicable, and no part is to be
brushed aside as immaterial or siipertluous unless no other rational
course is open. Hinckley v. Retirement Board oj Gloucester, 316 Mass.
496, 500.
In conclusion. I am of the opinion that, in computing the compensa-
tion to be paid to former state employees who while receiving a pension
have returned to active state service, the appropriate formula is that
which entitles the employee to the///// weekly salary of the position in
which he is reemployed until he has received an aggregate amount
which, when added to his annual pension, will equal the annual salary
currently being paid for his former position.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 20 March 6, 1973
Honorable Gregory R. Anrig
Conuuissioner of Education
182 Tremont Street
Boston. Massachusetts 021 1 1
Dear Commissioner Anrig:
Your predecessor requested my opinion as to the proper interpreta-
tion to be accorded G. L. c. 74. § 7. That section provides, in pertinent
part:
"Residents of towns in the commonwealth not maintaining
approved independent distributive occupations, industrial,
agricultural, household arts and practical nurse training
schools offering the type of education desired, . . . may, upon
the approval of the commissioner under the direction of the
state board, be admitted to a school in another town. In mak-
ing his decision, the commissioner under the direction of the
state board shall take into consideration the opportunities for
free vocational training where the applicant resides, the fi-
nancial status of such place, the age, sex. preparation, ap-
titude and previous record of the applicant, and other rele-
vant circumstances."
It appears from your predecessor's request that a dispute arose over
apprenticeship training programs administered by the Department of
Labor and Industries. For many years such programs have kept spe-
cially defined groups together at one school, regardless of residence.
The programs apparently were administered without incident until 1968,
at which time the City of Quincy refused to reimburse the Boston
School Department for tuition fees for Quincy residents. Your pred-
ecessor advised me that Quincy does provide approved independent in-
78 P.D. 12
dustrial education, maintaining facilities, staff and other necessities, and
that where the community (i.e., Quincy) was wiUing to carry out its
training responsibilities, it did not seem equitable to him to make Quincy
doubly liable.
Were the statutory scheme the same today as it was when your pred-
ecessor requested my opinion, I would be inclined to agree with his in-
terpretation of the statute and to conclude that where the Commissioner
of Education has approved facilities for vocational training in a city or
town, it was clearly within his discretion to disapprove admission of ap-
prentices to schools in another city or town. However, the General
Court in the last session responded to the problems to which I have re-
ferred supra, and enacted St. 1972, c. 760. That Chapter, which added a
new section 7B to chapter 74 of the General Laws, provides:
''An apprentice, as defined in section eleven H of chapter
twenty-three, shall, upon the concurrence of the commis-
sioner of labor and industries, be approved by the commis-
sioner for related vocational training in any city or town re-
gardless of residential qualification under the direction of the
state board. Related classes for an approved apprenticeship
program shall be conducted in a single school system, unless
the commissioner in agreement with the commissioner of
labor and industries determines that it would be in the best
interests of said program to conduct such classes in more
than one such school system."
In my view, the enactment of St. 1972, c. 760 establishes the priority
of related classes for an approved apprenticeship program, notwithstand-
ing the fact that there may exist approved programs or classes of instruc-
tion in an apprentice's home city or town.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 21 March 6, 1973
His Excellency Francis W. Sargent
Governor of the Commonwealth
State House
Boston, Massachusetts 02133
Dear Governor Sargent:
You have requested my opinion on the proper interpretation of the
last paragraph of G. L. c. 32, § 65A, as applied to the pension rights of
the widow of the late Judge Samuel E. Levine.
You state that Judge Levine died on July 2, 1972, after having served
for over ten years as Justice of the District Court of Williamstown. He
was 67 years of age at the time of his death, and his widow was therefore
entitled to a pension under G. L. c. 32, § 65C, consisting of a fractional
P.D. 12 79
share of the pension to which Judge Levine would have been entitled
under G. L. c. 32, § 65A, if he had retired immediately before his death.
Section 65A would have entitled Judge Levine to a pension of three-
fourths of his annual salary as district court judge had he retired im-
mediately before his death. The last paragraph of § 65 A entitles a district
court judge to an additional pension under certain circumstances. It pro-
vides:
"A justice of a district court who is retired under Article
LVIIl of the amendments to the constitution or who resigns
in accordance with the provisions of this section, and who
has served continuously for ten years prior to such retirement
or resignation in the appellate division of a district court or in
the superior court under the provisions of sections fourteen B
to fourteen E of chapter two hundred and twelve, or corres-
ponding provisions of earlier laws, or as a member of the ad-
ministrative committee of the district courts, shall, in addition
to all other amounts received under the provisions of this sec-
tion, be entitled to receive a pension for life equal to three
fourths of the average annual compensation paid him for such
service during the ten years next preceding such retirement or
resignation."
You further state that Judge Levine was a member of an Appellate
Division of the District Courts from October 15, 1962 to September 30,
1971 — a period of slightly less than nine years which ended approxi-
mately nine months before his death. In addition. Judge Levine served
on the Superior Court for five days in 1961, and for five or more days in
1963, 1964. 1965. 1966. 1967. 1968, 1969, 1970, 1971 and 1972, the first
day of such service having been November 12, 1963, and the last day
having been June 16, 1972 (approximately two weeks before his death).
Further details on the extent of such service and the compensation re-
ceived therefor are set out in correspondence from the Treasurer of the
County of Hampden and the Administrative Assistant to the Chief Jus-
tice of the Superior Court which you attached to your letter to me.
To pinpoint the legal issues more specifically, I should like to re-
phrase your questions as follows:
1. Is the word "continuously" to be read out of the last
paragraph of G. L. c. 32, § 65A as surplusage or as being
meaningless, or is it to be given effect, and if so, does the
clause "served continuously for ten years" mean "actually
sat without interruption every court day in each of ten con-
secutive years," or does it mean "served during each of ten
consecutive years, irrespective of the number of days of ac-
tual sittings in any year?"
2. If the last mentioned interpretation of the clause is the
correct one, is the word "or" in the sequence of service
enumerated in the last paragraph of § 65A, namely, service
"in the appellate division of a district court or in the superior
80 P.D. 12
court . . ., or as a member of the administrative committee of
the district courts," used disjunctively, or otherwise?
The words "served continuously" appear in several places in §§ 65A
and 65C. The Legislature, obviously aware of the usual meaning of the
word "continuously," namely, "without interruption," Petition of
Gishison, 47 Fed. Supp. 46, 50, made special provision in the second
paragraph of § 65 A, which permits early retirement for a judge who has
served in successive judicial offices provided that he served "continu-
ously" in such offices, that he "shall be deemed to have served continu-
ously although a period of thirty days shall have intervened between the
holding of one judicial office and another judicial office." See also
Opinion of the Justices, Mass. Adv. Sh. (1971) 1867. I conclude, there-
fore, that the Legislature intended the word "continuously" to have
meaning, and that therefore, it cannot be read out of the statute.
Commonwealth v. McMenimon, 295 Mass. 467.
I must, then, resolve the remaining issues raised in the first question.
The words "served . . . continuously" also appear in the second and
third paragraphs of § 65A, relating to the basic pensions forjudges who
retire on or before the age of 70 years after having "served . . . continu-
ously," and permitting the tacking of service in one judicial office to
another in determining whether the minimum period of continuous serv-
ice has been served, and appear again in the sixth and seventh para-
graphs of § 65C, relating to benefits for widows of judges, and permit-
ting, for the purpose of determining whether a judge has served in any
judicial office or offices "at least ten years continuously," the tacking
on of a specified portion of wartime or governmental service. It is clear
that the words "served continuously" in this context mean merely
served during each often (or the required number of) consecutive years,
and that actual days of sitting as a judge are to be ignored in determining
whether there has been service in a particular year. Op. Atty. Gen.,
Feb. 23, 1955, p. 78. That this is what the Legislature intended is em-
phasized by its special treatment of special justices for purposes of de-
termining whether service by them as special justices can be tacked on
to other judicial offices under the second paragraph of § 65 A. Recogniz-
ing that special justices, in the nature of things, sit occasionally, the
Legislature provided therein that, for the purposes of tacking such serv-
ice on to service in other full time judicial offices to determine whether
the minimum period of continuous service had been met, only l/300th of
the days of actual sittings would be counted. The Legislature, in effect,
has recognized that a judge serves every day that he is in office. There-
fore, for purposes of early retirement, including the tacking of service in
office to determine eligibility for early retirement, the only issue is
whether the judge has been in an office or offices for the requisite
minimum number of consecutive years.
The last paragraph of § 65A permits a justice of a District Court to
earn an additional pension if he is retired or resigns under stated condi-
tions, and if he "has served continuously for ten years prior to such re-
P.D. 12 81
tirement or resignation" (1) in the Appellate Division of a District
Court, or (2) in the Superior Court under the provisions of G. L. c. 212,
§§ 14B to 14E or corresponding provisions of earlier laws, or (3) as a
member of the Administrative Committee of the District Courts. The
rationale employed above to determine the meaning of "served continu-
ously"" as it applies to early retirement or tacking of service in succes-
sive offices, applies to service in said Appellate Division, because under
G. L. c. 231, § 108. a justice of the District Court may be assigned for
such period of time as the Chief Justice of the Supreme Judicial Court
may deem advisable, in practice for one year periods with customary
reappointments, and likewise applies to service on the Administrative
Committee of the District Courts, where appointments are for a
minimum term of two years. G. L. c. 218, § 43C. In other words, serv-
ice as a member of the Appellate Division or the Administrative Com-
mittee continues during the period of the justice's appointment, and the
successive years of such service and not the actual days of sitting as
such would be counted for the purpose of determining creditable serv-
ice. However, this rationale breaks down when applied to service in the
Superior Court, for, as we shall see, such service does not constitute an
"office"* or an "appointment" of any specific duration, but is ad hoc
and adventitious. A justice of the District Court under G. L. c. 212, §
14B is empowered to "sit in the superior court at the trial or disposition
... of any motor vehicle tort action, or any offense or crime over which
the district court has the original jurisdiction under the provisions of sec-
tion twenty-six of chapter two hundred, and eighteen . . . [but] [n]o jus-
tice of the district courts . . . shall so sit in the superior court . . . unless
his name appears on a list submitted by the chief justice of the district
court."" Such sessions under this statute may, by arrangement of the
Chief Justice, be held "simultaneously with other sessions or at other
times in the discretion of the chief justice."" A justice of the District
Court remains a justice of the District Court while sitting in the Superior
Court. Commonwealth v. Leach, 246 Mass. 464. Thus, the mere request
to a District Court justice to sit in the Superior Court from time to time,
whenever the need arises, cannot be deemed to be an "office" or "ap-
pointment"" which continues for a period of time. Only the days of ac-
tual sittings constitute service. Nor does the inclusion of his name in a
list prepared by the Chief Justice of the District Courts, which is a pre-
requisite thereto, constitute such office appointment because the Chief
Justice of the Superior Court may never request him to sit. Thus, if the
requirement in the last paragraph of § 65A that a justice must have
"served continuously for ten years" means that he must actually sit in
the Superior Court without interruption every Court day in each of ten
consecutive years, it is a practical nullity, because, in the nature of
things, it cannot be complied with. However, the Legislature clearly in-
tended that service in the Superior Court should entitle a justice of the
District Court to an additional pension if he serves the required period
of time. The history of the legislation makes this clear. Prior to 1950. the
last paragraph of § 65A made no reference to service in the Superior
82 P.D. 12
Court as a basis for earning an additional pension, and for good reason.
It was inserted as a result of an amendment made by St. 1950, c. 747, §
1. Significantly, §§ 14B through 14E were inserted into the General
Laws, specifically Chapter 212, by St. 1949, c. 210. § 1. Section 2 of said
Chapter 210 provided that said Act was enacted to make the provisions
of St. 1923, c. 469, as amended, which contained like provisions, but
was temporary legislation, "effective without limitation as to time.'*
Sections 14B and 14E have been extensively amended from time to time
since then, to broaden their scope. It is clear then, that in 1950, the
Legislature considered that the recurring overloading of the Superior
Court from time to time had become a fact of life, and desired to bestow
additional benefits upon District Court justices who were requested to
sit therein. Inasmuch as the intent of the Legislature is clear, I must as-
cribe to the words used by it a meaning which is consistent with that
intent. The only interpretation of the words "served continuously for
ten years" that accomplishes this purpose is "served during each often
consecutive years, irrespective of the number of days of actual sittings
in any year." This is consistent with the meaning of such continuous
service used elsewhere in §§ 65A and 65C.
I turn now to the second question, namely, whether "or" is used dis-
junctively in the last paragraph of § 65A. Ordinarily, the word "or" in a
statute is given a disjunctive meaning, unless the context and the main
purpose of all the words demand otherwise. Eastern Massachusetts
Street Railway Company v. Massachusetts Bay Transportation
Authority, 350 Mass. 340. "But that construction is often discarded in
order to effectuate a plain legislative purpose, or to accomplish the in-
tent manifested by the entire act or document." Central Trust Co. v.
Howard, 275 Mass. 153, 158. In my opinion, the word "or" as it is used
in the last paragraph of § 65A, is not used in the disjunctive or alterna-
tive sense. The Legislature intended to grant additional pension rights to
justices of the District Courts who performed certain additional func-
tions. Originally, the last paragraph of § 65A referred only to service in
the Appellate Division of the District Courts. St. 1946, c. 525. It was
amended by St. 1950, c. 747, § 1 which substituted a new last paragraph
which, in effect, merely added the "or" clause referring to service in the
Superior Court. It was again amended by St. 1951, c. 575, which substi-
tuted for the last paragraph a new paragraph, the purpose of which was
to add the "or" clause referring to service as a member of the Adminis-
trative Committee of the District Courts. It would appear from this
legislative history that the Legislature was intent on adding sources of
potential pension benefits. It is to be noted in this connection that under
said last paragraph of § 65 A the additional pension payable to a justice is
based on "three fourths of the average annual compensation paid him
for such service during the ten years next preceding such retirement or
resignation." However, by § 7 of St. 1963, c. 810, the Legislature substi-
tuted a new § 43A for the old § 43A in G. L. c. 218, which previously
provided, in the third paragraph thereof, that the members of the Ad-
ministrative Committee "shall receive such compensation for their serv-
P.D. 12 83
ices actually performed in the work of such committee as the governor
and council shall approve" plus necessary expenses, and by § 8 of the
1963 statute inserted a new § 43C into G. L. c. 218, which merely al-
lowed them their necessary expenses. Thus, if the word "or" in the last
paragraph of § 65A means that there must be ten continuous years of
service in the Appellate Division, or ten continuous years of service in
the Superior Court, or ten continuous years of service as a member of
the Administrative Committee, all in the alternative, then service on the
Administrative Committee after 1963 could not result in additional pen-
sion benefits because each member thereof would receive 44ths of no-
thing. The Legislature must have been aware of this when it enacted St.
1963, c. 810, §§ 7, 8. Flanagan v. Lowell Housing Authority, 356 Mass.
18. I must assume that the Legislature did not mean to deprive a justice
of the District Court of additional pension benefits which it so carefully
provided for by enactment of St. 1951, c. 575. Accordingly, I conclude
that the Legislature intended that service in any one or more of three
capacities mentioned in the last paragraph of § 65A during the ten years
immediately prior to resignation or retirement would be counted as cre-
ditable service, and the pension would be based on the average annual
compensation for all such service during such ten year period.
Accordingly, it is my opinion that Judge Samuel A. Levine would
have been entitled to an additional pension under G. L. c. 32, § 65A,
equal to three-fourths of his annual compensation for service by him in
the Superior Court and in the Appellate Division during the ten years
prior to his death, and his widow is entitled under G. L. c. 32, § 65C to
an increment in pension based upon the additional pension to which
Judge Levine would have been entitled.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 22 March 21, 1973
Hon. Wallace C. Mills
Clerk of the House of Representatives
State House
Boston, Massachusetts 02133
Dear Sir:
By letter dated January 30. 1973, you have asked my opinion as to
whether certain petitions for legislation to exempt the offices of police
chief and town accountant "of the town of Methuen" from the provi-
sions of the Civil Service law require the approval of a town meeting of
the town "in order for the legislature to act thereon, under the provi-
sions of section 8 of Article LXXXIX of Amendment to, the Constitu-
tion, commonly known as the Home Rule Amendment (HRA), or
whether the approval of the Council of the Town of Methuen, "and the
head administrative official established in accordance with the new char-
84 P.D. 12
ter form of government adopted by the town of Methuen (there appar-
ently being no provision for the election of a mayor)", complies with the
provisions of said section.
The voters of the town of Methuen, acting under the provisions of the
H.R.A. and of General Laws, Chapter 43B, adopted a new charter on
March 6, 1972. The charter establishes a "town council of twenty-one
members which shall exercise the legislative powers of the town" (Art.
2, section 1), three members of which are elected at large, and eighteen
precinct members, two each from 9 precincts. It also established a Town
Administrator, and made no provision for selectmen nor a town meet-
ing.
In my letter of December 6, 1971, acting in accordance with General
Laws, Chapter 43B, section 9(b), I stated that in my opinion the pro-
posed Methuen charter established a city form of government, for
reasons further stated in that opinion, appended hereto and incorporated
herein by reference. I am still of that opinion. Accordingly, a petition for
legislation in relation to Methuen may be considered under Article
LXXXIX of Amendment, section 8, only if filed or approved by the
voters, "or the Mayor and City Council or other legislative body" of the
city.
Clearly, the Town Council is the legislative body to be treated as the
"City Council" in accordance with General Laws, Chapter 4, section 7.
There being no nominal Mayor under the charter the question remains,
the signature of what officer, if any, satisfies the constitutional require-
ment that such a petition be approved by the "Mayor."
The Methuen charter provides for a "Town Administrator who shall
be the chief administrative officer of the town" (Art. 3, section 2). In
addition to his administrative duties, he is charged with attending meet-
ings of the Town Council, and among other things, "he shall recom-
mend to the Town Council for adoption such measures requiring action
by them as he may deem necessary or expedient."
In Young v. Mayor of Brockton, 346 Mass., 123, the Supreme Judicial
Court held that in a city where the city manager, not the mayor, was the
chief executive, the requirement of General Laws Chapter 138 that
members of the license board be appointed by the "mayor" meant that
the appointment should be made by the city's chief executive, in that
case the city manager, even though the city had a "mayor," under Plan
D. It is clear that the court in that case was following the principle
stated in Opinion of the Justices, 229 Mass. 601, that "It is the sub-
stance of the thing done, and not the name given to it, which controls."
The only other officer who might conceivably be deemed to qualify is
the President of the Council. But he is a member of the legislative body,
and the Constitution requires the approval of the "The Mayor and City
Council or other legislative body."
It is therefore my opinion that the petitions referred to in your letter
require the approval of the Town Council and the Town Administrator
before they can be acted upon by the General Court under the Second
P.D. 12 85
Amendment to the Constitution of the Commonwealth, as amended by
Article 89 of the Articles of Amendment.
Respectfully yours,
ROBERT H. QUINN
Attorney General
Number 23 March 23, 1973
Edward C. Starosta, D.M.D.
Chairman
Board of Dental Examiners
Leverett Saltonstall Building
Government Center
100 Cambridge Street
Boston. Massachusetts 02202
Dear Dr. Starosta:
You have requested an opinion whether programs of study permitting
students of dental hygiene to "drill and cut hard and soft tissue" would
be in violation of the Massachusetts Dental Practice Act, G. L. c. 112,
§§ 50, 51 and 53. For the reasons hereinafter stated. I answer your ques-
tion in the affirmative. G. L. c. 112, § 50 provides in pertinent part:
"A person shall be deemed to be practicing dentistry if he holds
himself out as being able to diagnose, treat, operate or prescribe
for any disease, pain, injury, deficiency, deformity or other condi-
tion of the human teeth, alveolar process, gums or jaws, and as-
sociated parts, intraorally or extraorally, or if he either offers or
undertakes by any method to diagnose, treat, operate or prescribe
for any disease, pain, injury, deficiency, deformity or other condi-
tion of the same; . . ."
This Section provides for alternate methods of "practicing dentistry."
One might either "(hold) himself out as being able to diagnose, treat,
operate . . ." or "(offer) or (undertake) by any method to diagnose,
treat, operate ..." certainly, a student of dental hygiene engaged in
"drilling and cutting hard and soft tissue" would not be "holding himself
out" as registered to practice dentistry in instances where he was work-
ing under the supervision of a registered dentist and the patient was fully
informed of his status.
However, by "drilling and cutting hard and soft tissues" a hygiene
student would be in violation of the alternative provision of section 50,
to wit:
"... offers or undertakes by any method to diagnose,
treat, operate ..." Consequently, a proper reading of sec-
tion 50 would appear to preclude courses of study investing students of
dental hygiene with this practical experience.
G. L. c. 112, § 51, as recently amended by St. 1971 c. 620, sets forth
qualification requirements for dental hygienists and states in pertinent
part:
86 P.D. 12
"Any person of good moral character, nineteen years old
or over, who is a graduate of a training school for dental
hygienists requiring a course of not less than one academic
year and approved by the board, or who is a full time dental
student who has satisfactorily completed at least four full
semesters in an accredited dental college but who has not
graduated from any dental college, may if his examina-
tion is satisfactory, ... be registered as a dental hygienist
. . ." This section clearly provides that a graduate of an ap-
proved dental hygienist training school and a dental student
of at least four full semesters qualify to take the examination
for registration as a dental hygienist.
G. L. c. 112, § 53 indicates that sections 43 to 52 of Chap-
ter 112, inclusive, will not apply to:
". . . prevent a student of a reputable dental college, incor-
porated under the laws of this commonwealth and granting
degrees in dentistry, from performing operations as part of
the regular college course, ..."
By this provision, a dental student who opts for a license as a dental
hygienist upon the completion of four full semesters of dental school, is
immune from unauthorized practice violations under section 50 for any
"drilling and cutting (of) hard and soft tissue.'' By contrast, a graduate
of a dental hygienist training school assumes the risk of unauthorized
practice of dentistry by performing similar operations during his training
process.
That some dental hygienists are thereby authorized to perform "dril-
ling and cutting" operations as students while others are not might ap-
pear to be arbitrary and inconsistent. However, the immunity granted in
section 53 is for dental students and no distinction is made for dental
students who later opt for registration as dental hygienists.
Although this imparts an advantage upon dental students who become
dental hygienists, there is no practical alternative. Such practical experi-
ence is requisite for aspiring dentists and there is no feasible way to de-
termine which dental students will complete their course of study and
which will opt for dental hygiene at the termination of four full semes-
ters.
That a special immunity is granted dental students by section 53 for
operations performed as part of the regular college course while no simi-
lar exemption is granted students of dental hygiene appears to evidence
a legislative intent restricting the practical training of dental hygienists.
Section 51 (5) authorizes a registered dental hygienist to "assist a reg-
istered dentist in any phase of operative and surgical procedures in den-
tistry and in anesthesia" but section 50 prevents a student of dental
hygiene from performing the most rudimentary "drilling and cutting."
Although this creates an apparent gap between expectations and train-
ing, the General Court did not elect to exempt dental hygiene students
from the rigors of section 50.
P.D. 12 87
Thus, it is my opinion that a course offering to students of dental
hygiene allowing them to "drill and cut hard and soft tissue" would be
in violation of the Massachusetts Dental Practice Act.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 24 March 23, 1973
Honorable John F. Kehoe, Jr.
Conunis.sioner
Department of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Dear Commissioner Kehoe:
You have requested an opinion whether the State Police Helicopter is
subject to tax as a "civil aircraft'' under the Internal Revenue Code, the
Airport and Airway Revenue Act of 1970, the Federal Aviation Act of
1958, or any Commonwealth Statute or Federal Act.
You have furnished us with a letter dated September 15, 1972 from the
Internal Revenue Service in which IRS concludes that the State Police
Helicopter is subject to taxation by the Federal government.
There are two questions subsumed in your inquiry:
1. Does the Internal Revenue Code impose a tax upon the use of a
helicopter used by the Commonwealth for police work; and
2. If the Internal Revenue Code does impose such a tax, is the at-
tempted imposition of the tax constitutional?
The Code provides in pertinent part as follows:
"4491 (a) A tax is hereby imposed on the use of any taxable civil air-
craft . . .
(b) . . . The tax . . . shall be paid —
(1) in the case of a taxable civil aircraft described in sec-
tion 4492 (a) (1), by the person in whose name the air-
craft is, or is required to be, registered, . . ."
"4492 (a) . . . the term 'taxable civil aircraft' means any engine dri-
ven aircraft —
(1) registered, or required to be registered, under section
501 (a) of the Federal Aviation Act of 1958 (49 U.S.C,
sec. 1401 (a) ) . . ."
49 U.S.C. § 1401 provides as follows:
(a) It shall be unlawful for any person to operate or navigate
any aircraft eligible for registration if such aircraft is not
registered as provided in this section, or ... to operate or
navigate within the United States any aircraft not eligible
for registration: . . .
P.D. 12
(b) An aircraft shall be eligible for registration if, but only if —
*****
(2) It is an aircraft of the Federal Government, or of a
State, Territory, or possession of the United States or
the District of Columbia, or a political subdivision
thereof."
It is clear from the foregoing that § 4491 (b) of the Internal Revenue
Code imposes a tax on the Commonwealth's helicopter because the
Commonwealth is required to register it. The question of the constitu-
tionality of the tax remains to be considered.
I assume that the helicopter is used by the State Police solely for a
governmental function. In this respect. Congress possess no power to
lay taxes which would obstruct or interfere with the legitimate and effi-
cient working of the state governments. Thus, the Supreme Court has
stated:
"[A] tax upon the instrumentalities of the states is forbid-
den by the Federal Constitution, the exemption resting upon
necessary implication in order to effectively maintain our dual
system of government. The familiar aphorism is 'that as the
means and instrumentalities employed by the general gov-
ernment to carry into operation the powers granted to it are
exempt from taxation by the states, so are those of the states
exempt from taxation by the general government.' Amrosini
v. United States, 187 U.S. 1, 7. Willcuts v. Biinn, 282 U.S.,
216, 224-225.
Accordingly, it has been held that an excise tax cannot be levied by
the United States upon a motorcycle sold by its manufacturer to a
municipal corporation of the state for use by such corporation in its
police service. Indian Motorcycle v. U .S., 283 U.S. 570.
I conclude, therefore, that the tax which the Internal Revenue Service
seeks to levy upon the State Police Helicopter is unconstitutional and
should not be paid.
Yours very truly,
ROBERT H. QUINN
Attorney General
Number 25 March 27, 1973
Honorable John F. Kehoe, Jr.
Commissioner of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Dear Commissioner Kehoe:
You have called my attention to St. 1972, c. 616, entitled "AN ACT
PROVIDING THAT CERTAIN ORGANIZATIONS MAY OB-
P.O. 12 89
TAIN A LICENSE TO CONDUCT A GAME COMMONLY CAL-
LED BEANO, AND FURTHER REGULATING THE DAYS IN
WHICH SAID GAME MAY BE PLAYED,' which amended Chap-
ter 486, Acts of 1971, and have requested my opinion as to.
"A) whether or not the Commissioner of Public Safety can
now approve a BEANO license which would allow the hold-
ing or conduct of said game on a Sunday; and, B) in the event
that you indicate in your opinion that BEANO could be
played on Sundays when licensed under the provisions of
Chapter 147, as amended, would the applicant organization
be required to have an additional Sunday license, so called,
as issued under the provisions of Chapter 136. Section 4, of
the so-called Sunday Laws?"
Prior to the enactment of the 1971 statute, "the game commonly
known as Skilo or any similar game regardless of name" (which I as-
sume includes the game of Beano) was deemed an illegal lottery. G. L.
c. 271, § 6B. The 1971 statute struck out § 6B of c. 271 of the General
Laws, and substituted a new section 6B which declared such games il-
legal "except as provided in section twenty-two B," and also inserted a
new § 22B in c. 271, which provided in part:
"Nothing in this chapter shall authorize the prosecution,
arrest or conviction of any person for promoting or playing,
or for allowing to be conducted, promoted or played, the
game commonly called beano, or substantially the same game
under another name in connection with which prizes are of-
fered to be won by chance; provided, said game is conducted
under a license issued by the commissioner of public safety,
under the provisions of section fifty-two of chapter one
hundred and forty-seven/' (Emphasis supplied.)
The 1971 statute also inserted §§ 52-55 into Chapter 147 of the Gen-
eral Laws. The first paragraph of § 52 authorized the issuance of
licenses to certain enumerated organizations "to operate or conduct the
game commonly called beano, or substantially the same game under
another name, in connection with which prizes are offered to be won by
chance . . ."
The fourth paragraph of § 52 provided:
"No such license shall be granted to allow the operation,
holding or conduct of said game on a Sunday. Each license
shall limit the playing of said game to the hours between
seven o'clock post-meridian and twelve o'clock midnight.
Each such organization licensed hereunder shall be limited to
conducting said games to one night, other than Sunday, in
each calendar week, and said night shall be set forth in the
license." (Emphasis supplied.)
Section 1 of c. 616 of the Acts of 1972. referred to above, amended §
52 of c. 147 of the General Laws by substituting a new first paragraph,
the only effect of this substitution being to enlarge the list of eligible or-
90 P.D. 12
ganizations, and § 2 of c. 616 provided in part, "The fourth paragraph of
said section 52 of said chapter 147 ... is hereby amended by striking out
the first sentence." The first sentence expressly prohibits the issuance
of a Sunday license, and its deletion would ordinarily give rise to the
conclusion that the Legislature intended thereby that the game could be
allowed to be played on Sunday. However, the last sentence of the
fourth paragraph was left intact, and that only permits a licensee to play
"one night, other than Sunday, in each calendar week, and said night
shall be set forth in the license." The literal effect of the 1972 amend-
ment, in so far as Sunday games are concerned, is to continue to permit
(under G. L. c. 271, § 22B) the playing of Beano "provided, said game is
conducted under a license issued by the commissioner of public safety,
under the provisions of section fifty-two of chapter one hundred and
forty-seven," but to permit the commissioner to issue a license only for
"one night, other than Sunday" under said § 52, as amended.
It was illegal prior to the enactment of the 1971 statute to conduct or
play the game of Skilo or Beano, and I must assume that the Legislature
continues to declare it illegal for Sunday operation, unless it clearly pro-
vides otherwise. It has not done so. The legislation may appear to be
nugatory in this respect but even an absurd result must be accepted if
clearly required by the statute. Cf. Johnson v Commissioner of Public
Safety, 355 Mass. 94, 99. Nor can the Title of the Act, which purports
to further regulate "The Days On Which Said Gcime May Be Played"
change the unambiguous language of the statute itself. Cf. Attorney
General v. Goldberg, 330 Mass. 291, 293.
Accordingly, it is my opinion that a license to play beano on Sunday
cannot be issued. In view of this, it is unnecessary to answer part (B) of
your question.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 26 April 4, 1973
Honorable John W. Sears, Commissioner
Metropolitan District Commission
20 Somerset Street
Boston, Massachusetts 02108
Dear Commissioner Sears:
You have requested my opinion whether, in view of the provisions of
St. 1971, c. 1004, the Metropolitan District Commission should compen-
sate its officers who attend as witnesses for the Commonwealth in crim-
inal cases at times other than during their regular tour of duty, at the rate
of one and one-half times the regular hourly rate of compensation for
such officers. For the reasons expressed herein, I answer your question
in the affirmative.
P.D. 12 91
St. 197 K c. 1004, § 7 amended G. L. c. 149 by inserting section 30C,
which provides in part:
''The service of all members ... of the metropolitan dis-
trict police force . . . shall consist of an average of forty
hours per week over a period of one or more work weeks not
in excess of eight, as determined by the commissioner of the
department . . . and shall be restricted to not more than five
normal work days, as so determined, in any consecutive
seven-day period; provided, however, that all service in ex-
cess of the normal work day, as so determined, or in excess
of forty hours per week, as so averaged, rendered by any
such officer at the request of the commissioner of the de-
partment in which he is serving . . . shall be compensated for
at the rate of one and one half times the regular hourly rate of
such officer for every hour or fraction thereof of such serv-
ices rendered."
Section 5 of said c. 1004 amended G. L. c. 92, by inserting a new § 62
which provides:
"The commissioner may in the event of any public
emergency, or of any unusual demand for the services of
members of said police force, or whenever he deems it neces-
sary in the public interest, require such members to work ad-
ditional hours of duty and prevent such members from taking
time off when entitled thereto, or assigned therefor; provided,
however, that such members shall be compensated for any
additional work in accordance with the provisions of section
thirty C of chapter one hundred and forty-nine." (Emphasis
supplied.)
Section 6 of Chapter 1004 repealed G. L. c. 92, § 62B which had pro-
vided: "Notwithstanding any other provision of law, members of the
police force of the commission who perform service beyond their regular
hours of service shall be compensated therefor as overtime service."
In construing a statute, the proper objective is to ascertain and effec-
tuate the intent of the Legislature, as shown by the whole act, the law
existing before its passage, changes made and the apparent motive for
making them. City of Somerville v. Commonwealth, 225 Mass. 589, 593.
It is clear that the Legislature by the enactment of St. 1971, c. 1004, §
7 intended to standardize the work week of the Commission's police
force to an average of forty hours, and not more than five normal work
days in any consecutive seven-day period. Services performed in excess
of the normal work day or in excess of forty hours are to be compen-
sated for at the rate of one and one-half times the regular hourly rate.
The Legislature, however, recognized that there would be instances
where the services of the police force will be needed to an extent where
it becomes necessary to require a member of the force to work addi-
tional hours or to prevent one from taking time off when entitled thereto.
Thus, § 5 of said chapter authorizes ''forced overtime" but requires that
92 P.D. 12
the officer be compensated for such additional work at the rate of one
and one-half times the regular hourly rate for that officer.
It is also clear that the Legislature by repealing G. L. c. 92, § 62B, the
prior overtime statute, indicated its intent that St. 1971, c. 1004, §§ 5 and
7 be the applicable statutory provisions for all work performed in excess
of the normal work day or work week as so averaged.
The resolution of your question depends upon an examination and
analysis of G. L. c. 262, § 53C which provides for certain benefit for
police officers testifying for the Commonwealth during nonworking
hours, and what effect St. 1971, c. 1004, §§ 5 and 7 have upon said sec-
tion.
General Laws, c. 262, § 53C, as amended by St. 1970, c. 664, pro-
vides in part:
"Any police officer ... on duty at night or on vacation,
furlough or on a day off, who attends as a witness for the
commonwealth in a criminal case . . . may, in lieu of the wit-
ness fee to which he would otherwise be entitled . . . be
granted such compensatory time off as shall be equal to the
time during which he was in attendance at such court, but in
no event shall less than three hours compensatory time off be
granted him or, // such additional time off cannot be given
because of personnel shortage or other cause, he shall, in
lieu of said witness fee, be entitled to additional pay for the
time during which he was in attendance at such court, but in
no event shall he receive less than three hours additional
pay." (Emphasis supplied.)
On November 3, 1967, my predecessor rendered an opinion to the
then Commissioner of Public Safety which concluded that § 53C did not
apply to witness fees for state police officers.' Subsequent to that opin-
ion, § 53C was amended so as to specifically include state police officers
and a reference to § 53B. However, the 1967 opinion went beyond the
specific question asked by the Commissioner and set forth a detailed
analysis of § 53C and stated certain conclusions with respect to the
proper interpretation of said section. That portion of the opinion was
not, in my view, affected by the subsequent amendment to the statute.
A copy of the prior opinion is enclosed and I incorporate herein so much
of it as is pertinent to the resolution of your question.
As noted in the 1967 opinion, § 53C does not require a police depart-
ment to grant compensatory time off or additional pay to its officers in
lieu of witness fees. The section provides that the officer, ""may, in lieu
of the witness fee ... be granted such compensatory time off. . . ." The
use of the word "may" indicates that the Legislature intended the sta-
tute to be permissive rather than mandatory. The latter part of § 53C
provides that if the compensatory time off cannot be granted, the officer,
""shall ... be entitled to additional pay ..." The apparent contradiction
between the two clauses was resolved in the 1967 opinion by reading the
' |yfi7-l%S Op. Atfy. den. p. 129
P.D. 12 93
"shall be entitled" clause as operative only after the department's elec-
tion to invoke the "may be granted" clause. In other words, //'the of-
ficer qualifies under § 53C and //his police department awards compen-
satory time off. and //'such time off cannot be given in a particular case,
then the officer, "shall ... be entitled to additional pay . . ."
It should be noted that the permissive aspects of § 53C should not.
and. in my opinion, cannot, be interpreted to mean that the Commission
or any other department can determine, on a day-to-day basis, whether
its officers are entitled to the statutory benefits of § 53C. The provisions
of § 53C mean that the Commission or any other department can adopt
as a policy the statutory benefits of § 53C, or it could adopt a policy
which provided no inducement for an officer to waive his witness fee.
This, in my opinion, is the intent of § 53C and is also the conclusion
reached by my predecessor in the earlier opinion, wherein it was stated:
"... [I]f an officer qualifying under § 53C has been in-
duced to waive the fee by the existence of a lawful regulation
issued by the chief of his police department providing that the
statutory benefits are to be granted to an officer so doing, the
officer thereby acquires a legal right to time off or additional
pay, as the case may be. He is not, however, entitled to
choose between compensatory time off and additional pay
. . . Any decision that such time off cannot be given must
necessarily be made by the police department or by higher
authority, rather than by the individual officer." 1967-1968
Op. Att'y Gen., supra at 131.
Your letter states that it has been the policy of the Commission to
compensate its officers who attend as witnesses for the Commonwealth
on a straight time basis. It is apparent, therefore, that the Commission
has recognized and has been awarding its officers the statutory benefits
of § 53C, but that, because of personnel shortages or other reasons,
compensation has been by additional pay rather than compensatory time
off.
St. 1971, c. 1004 did not, in my opinion, affect the permissive aspects
of G. L. c. 262, § 53C. To interpret c. 1004 as requiring a compensation
rate of time and a half whenever a police officer testified on nonworking
days, would be tantamount to repealing § 53C which, as noted above,
does not require police departments or the Commission to provide any
benefits in lieu of the witness fee. Moreover, such an interpretation
would take away the choice of those departments which do provide
benefits, of providing compensatory time off or additional pay. Repeal
of statutes by implication is not favored in this Commonwealth. "Unless
the prior statute is so repugnant to and inconsistent with the later
enactment that both cannot stand, then the former is not deemed to have
been repealed, (citations)." Haffncr v. Director of Public Safety of
Lawrence, 329 Mass. 709, 713-14. The provisions of St. 1971, c. 1004
and G. L. c. 262, § 53C should be read together so as to produce a con-
sistent and harmonious body of law. Assessors of Boston v. Lamson,
94 P.D. 12
316 Mass. 166, 171. Statutes which appear to be inconsistent with each
other, in whole or in part, must be so construed 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.
Reading the two statutes together, it appears that while St. 1971, c.
1004 did not affect the permissive aspects of § 53C, it does compel those
departments which have elected to provide their officers with the statut-
ory benefits of § 53C, to do so consistent with the applicable provisions
of c. 1004. Having made this election, the Commission has given to
those officers who waive their witness fees, a right to time off equ.tl in
amount to the time spent in Court or three hours, whichever is greater.
When the Commissioner or an appropriate official in the Commission
makes the determination that the officer cannot be awarded time off and
requires the individual to work, that officer is entitled to compensation
equal to one and one-half times his hourly rate for the amount of time he
spent in court or three hours, whichever is greater. This conclusion is
necessitated by § 5 of c. 1004 in that in such a case the officer is being
prevented from "taking time off when entitled thereto"' within the mean-
ing of said section.
The fact that § 7 of c. 1004 refers to services rendered ''at the request
of the commissioner . . .," does not persuade me that the provisions of
the chapter are not applicable to officers testifying in Court. Police of-
ficers of the Commission or of any other department are expected to ap-
pear in Court whenever necessary whether or not a formal subpoena has
been issued. The testimony of an officer is often critical to the success-
ful prosecution of the case, and is certainly an essential function of any
police officer's duties.
Finally, it should be noted that both the decision whether to invoke
the statutory provisions of § 53C, and, if that is done, whether to award
compensatory time off or additional pay, rests with the Commission, not
the individual officer. The Commission, therefore, has control over the
situation and in fact makes the determination whether or not the time
spent in Court will become service in excess of the normal work week.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 27 April 11, 1973
Honorable Joseph Leavey
A ctinii Commissioner
Department of Youth Services
73 Tremont Street
Boston, Massachusetts 02108
Dear Mr. Leavey:
Your predecessor requested my opinion as to the propriety of detain-
ing juveniles who have been bound over to the Superior Court for trial
P.D. 12 95
pursuant to G. L. c. 1 19, § 75 and c. 218. § 30, in the Charles Street Jail
(relating to binding over defendants tor trial in the Superior Court).
General Laws. c. 119. § 75 authorizes the Court, if a delinquency
complaint against a person is dismissed under §§61 or 72 A. to issue a
criminal complaint, have it sworn to. examine on oath the complainant
and witnesses, and either commit him if he appears guilty, or bind him
over for trial "according to the usual course of criminal proceedings . . .
Section . . . sixty-eight of this chapter shall apply to any person commit-
ted under this section for failure to recognize, pending a determination
by the court that he appears guilty and pending final disposition in the
superior court."" Section 61 permits the Court, where an offense is
committed by a child while between his 14th and 17th birthday, to dis-
miss a delinquency complaint if the Court is of the opinion that the in-
terests of the public require that the child should be tried for said of-
fense. Section 72A gives the Court like power in the case of children
who have committed an offense prior to their 17th birthday, but where
the proceedings are held or instituted after his 17th birthday.
It should be noted in this connection that §§ 53. 66 and 74 provide:
§ 53. (Proceedings Not to Be Deemed Criminal.)
"Sections fifty-two to sixty-three, inclusive, shall be liber-
ally construed so that the care, custody and discipline of the
children brought before the court shall approximate as nearly
as possible that which they should receive from their parents,
and that, as far as practicable, they shall be treated, not as.
criminals, but as children in need of aid, encouragement and
guidance. Proceedings against children under said sections
shall not be deemed criminal proceedings.""
§ 66. (Detention in Police Station, etc.. Commitment to
Jail, etc.)
"Except as otherwise provided in section sixty-seven and
in section twelve of chapter one hundred and twenty, no child
under seventeen years of age shall be detained by the police
in a lockup, police station or house of detention pending ar-
raignment, examination or trial by the court. Except as
otherwise provided in section sixty-eight, no child under sev-
enteen years of age shall be committed by the court to a jail
or house of correction or to the state farm, pending further
examination or trial by the court or pending any continuance
of his case or pending the prosecution of an appeal to the
superior court or upon adjudication as a delinquent child.""
§ 74 (Proceedings Against Persons Committing Offense
Prior to Seventeenth Birthday Limited.)
"Criminal proceedings shall not be begun against any per-
son who prior to his seventeenth birthday commits an offense
against the law of the commonwealth or who violates any city
ordinance or town by-law, unless proceedings against him as
a delinquent child have been begun and dismissed as required
by section sixty-one or seventy-two A.""
96 P.D. 12
It should also be noted that, of the original §§ 73 through 83. inclusive,
only §§ 74 and 75 (referred to above) and § 83 remain in effect. Section
83 relates to trial and conviction of a juvenile in Superior Court in the
same manner as if he were an adult, except that the Court has the power
to adjudicate the person a delinquent child if he has not attained 18 years
of age.
Sections 67 and 68 of Chapter 119 deal respectively with the arrest
and detention pending hearing or trial of children between 7 and 17 years
of age. Prior to enactment of St. 1969, c. 838, both sections drew a dis-
tinction between children under 14 years of age and children 14 to 17
years of age. Thus, § 67, after arrest of a child, required his release to
specified persons without bail, except that a child between 14 and 17
years of age could be detained (subject to bail) in "a police station or
town lockup, house of detention, or place of temporary custody com-
monly referred to as a detention home of the division of youth service,
or any other home approved by the youth service board pending his ap-
pearance in court" but the detention facilities in case of a police station
or town lockup must have been approved in writing by the division of
youth service, and such children must be kept in a separate and distinct
place and must not come in contact with adult prisoners.
Former § 68 provided as follows:
"A child between seven and fourteen years of age held by
the court for further examination, trial or continuance, or for
indictment and trial under the provisions of sections seventy-
three to eighty-three, or to prosecute an appeal to the
superior court, if unable to furnish bail, shall be comm.itted by
the court to the care of the youth service board or of a proba-
tion officer who shall provide for his safekeeping; provided,
however, that the appearance at such examination or trial, or
at the prosecution of the appeal of such child, or of any other
child between fourteen or seventeen years of age detained
with the consent of the youth service board under this sec-
tion, shall be the responsibility of the court for which he is
being held in safekeeping.
A child between fourteen and seventeen years of age so
held by the court if unable to furnish bail shall be so commit-
ted to the youth service board with its consent, or to a proba-
tion officer, unless the court on immediate inquiry shall be of
opinion that such child should be committed to jail, in which
case said child may be committed to jail.
The youth service board may provide special foster homes,
and places of temporary custody commonly referred to as de-
tention homes of the division of youth service for the care,
maintenance and safekeeping of such children between seven
and seventeen years of age who may be committed by the
court to the youth service board under this section: provided,
that no more than five such children shall be detained in any
such special foster home at any one time.
P.D. 12 97
A child between seven and seventeen years of age so
committed by the court to jail or to the youth service board to
await further examination or trial by the Boston juvenile
court, a district court or the superior court shall be returned
thereto within fifteen days after the date of the order of such
commitment, and final disposition of the case shall thereupon
be made by adjudication or otherwise, unless, in the opinion
of the court, the interest of the child and the public otherwise
require. If the opinion of the court is that the case should be
further continued and the child committed to the youth serv-
ice board pending such further continuance, then the com-
mitment pending each such further continuance must be with
the consent of the youth service board, except where the
child was under the age of fourteen years at the time of the
original commitment, and provided that, unless hearing, find-
ing or final adjudication is to take place at the expiration of
such continuance as herein provided, the child need not be
returned to court by the youth service board. In such case the
court shall notify the youth service board or the person hav-
ing custody of the child and the parent that the child need not
be present in court for such further continuance.
Any child committed to jail under this section shall, while
so confined, be kept in a place separate and apart from all
other persons committed thereto who are seventeen years of
age or over, and shall not at any time be permitted to as-
sociate or communicate with any other such persons commit-
ted as aforesaid, except when attending religious exercises or
receiving medical attention or treatment.
The provisions of section twenty-four of chapter two
hundred and twelve relative to the precedence of cases of
persons actually confined in prison and awaiting trial shall
apply to children held in jail or detention facilities of the
youth service board under this section to prosecute appeals to
the superior court, or held for indictment and trial under the
provisions of sections seventy-three to eighty-three of this
chapter.
Said probation officer shall have all the authority, rights
and powers in relation to a child committed to his care under
this section, and in relation to a child released to him as pro-
vided in section sixty-seven, which he would have if he were
surety on the recognizance of such child."
In 1969, the Legislature enacted St. 1969, c. 838 for the purpose of
"Establishing a Department of Youth Services.'' The Act also made
significant changes in §§ 67 and 68 of c. 1 19. Thus, § 67 (as amended by
St. 1969, c. 838, § 17) omitted reference to a "house of detention" as a
permissible place of detention of children between the ages of 14 and 17
and expressly provided that "[njothing in this section shall permit a
98 P.D. 12
child between fourteen and seventeen years of age being detained in a
jail or house of correction." St. 1969, c. 838, § 18 substituted a new § 68
in c. 1 19, and § 68 was further amended in part by St. 1969, c. 859, § 12.
Before considering the new section 68, it would be instructive to analyze
the section as it existed prior to the 1969 changes.
It will be noted that the old § 68 authorized the Court to commit a
child between the ages of 7 to 17, who is unable to furnish bail, while
awaiting examination by the Court or trial or continuance, or for indict-
ment and trial under §§ 73 to 83, or to prosecute an appeal to the
Superior Court. The child could only be committed to the care of the
Youth Service Board or a probation officer, except that, under the sec-
ond paragraph of § 68, the Court could commit a child between the ages
of 14 and 17 to jail. The fourth paragraph required a final disposition by
the Court of the cases of "[a] child between seven and seventeen years
of age so committed to jail or the youth service board" within 15 days
after commitment ''to await further examination by the Boston juvenile
court, a district court or the superior court," unless the Court found that
the interest of the child or the public otherwise required in which case
further continuances could be made under certain conditions. Note that
there is no reference in the fourth paragraph to a child "held ... for
indictment and trial" under §§ 73-83, as in the first paragraph. The fifth
paragraph required that "[a]ny child comrpitted to jail under this sec-
tion" is to be kept separate from persons over 17 years of age committed
thereto, and the sixth paragraph made the speedy trial provisions of c.
212, § 24 applicable "to children held in a jail or detention facilities of
the youth service board under this section to prosecute appeals to the
superior court, or held for indictment and trial under the provisions of
sections seventy-three to eighty-three of this chapter."
The new § 68, inserted by St. 1969, c. 838, § 18, changed the old § 68
by expanding the list of persons to whom the Court under the first
paragraph could commit a child unable to make bail, so as to include "a
parent, guardian, or other responsible person." The second paragraph
permitting commitment of children of 14 to 17 years of age to jail, and
the fourth paragraph relating to special treatment of any child held in
jail, were omitted, and the sixth paragraph which previously provided
for speedy trial of children "held in jail or detention facilities of the
youth service board" was amended so as to apply only to children "held
in detention facilities of the department of youth services." The fourth
paragraph of the old § 68, relating to final disposition of the case within
15 days, unless extended, became the third paragraph in the new § 68,
and, as amended, also omitted any reference to a child held in jail.
As amended through St. 1969, c. 838, §§ 17 and 18, it appears clear
that a child between 14 and 17 years of age, arrested as a delinquent, or
held in case of failure to furnish bail for examination, trial or appeal as a
delinquent or for indictment and trial as an adult under §§ 73-83, could
not be committed to jail under G. L. c. 119, §§ 67 or 68. However, St.
1969. c. 859, § 12 further amended § 68 by substituting a new third
paragraph (corresponding to the fourth paragraph of the old § 68), The
P.D. 12 99
primary reason for the amendment is that St. 1969, c. 859 was an "Act
Providing For The Establishment of Juvenile Courts in the Cities of
Worcester and Springfield and Establishing a State Council on Juvenile
Behavior/" and § 12 of said c. 859 was designed to amend G. L. c. 119,
§ 68 so that the third paragraph would include references to the Worces-
ter and Springfield Juvenile Courts which had been created by c. 859.
However, the third paragraph went beyond this by providing as follows:
"A child between seven and seventeen years of age so
committed by the court to jail or to the youth service board
(sic) to await further examination or trial by the Boston
juvenile court, the Worcester juvenile court, the Springfield
juvenile court, a district court of (sic) the superior court shall
be returned thereto within fifteen days after the date of the
order of such commitment, and final disposition of the case
shall thereupon be made by adjudication or otherwise, unless,
in the opinion of the court, the interest of the child and the
public otherwise require.""
The new third paragraph provides for early disposition of the cases of
children between 7 and 17 years of age held for further examination and
trial as a delinquent and "so committed . . . to jail or to the youth serv-
ice board . . ."" The words "so committed . . . to jail"" obviously refer to
prior statutory provisions, but c. 119, as amended through St. 1969, c.
859, § 12, no longer contains any express provision for commitment to
jail whether of a child held as a delinquent or for indictment and trial as
an adult. Section 75, relating to indictment and trial of a child after dis-
missal of a delinquency complaint, makes § 68 applicable "to any person
committed under this section, for failure to recognize."" In the absence
of an express authorization to the Court to commit such persons to. jail,
the Court has no power to do so. Cf. Robinson v. Commonwealth, 242
Mass. 401, 404. The question then remains whether the Legislature, by
inserting the reference to "jail" into the third paragraph of the new § 68
(formerly the fourth paragraph of the old § 68), impliedly authorized the
Court to commit such persons to jail.
The third paragraph of the new § 68 and the corresponding fourth
paragraph of the old § 68 were designed for the protection of children,
who are detained because they were unable to raise bail, by requiring a
speedy disposition of their case. Notably absent from this paragraph
under both the old and the new § 68, requiring disposition of the case
within 15 days unless the time is extended, was any reference to children
14 to 17 years of age or older held for indictment and trial under §§ 73 to
83; and this would seem to imply that, notwithstanding the provision in §
75 that § 68 would apply in cases of commitment for failure to recognize,
such speedy disposition was not required in the case of such older chil-
dren. Nevertheless, inasmuch as this third paragraph of § 68 deals solely
with speedy disposition of the cases of certain children detained in de-
tention facilities because they are unable to furnish bail, and since § 53
provides that §§ 52 to 63 (including § 61 relating to dismissal of a delin-
quency complaint against a child 14 to 17 years "if the court is of the
100 P.D. 12
opinion that the interests of the public require that he should be tried for
said offense or violation") should be liberally construed so that the care,
custody and discipline of . . . children . . . shall approximate as nearly
as possible that which they should receive from their parents, and that,
as far as practicable, they shall be treated, not as criminals, but as chil-
dren in need of aid, encouragement and guidance. Proceedings . . .
under said sections shall not be deemed criminal proceedings" — it
would seem that we should not imply an authority in the Court to com-
mit to jail, which the Legislature, in St. 1969, c. 838, § 18, expressly de-
leted. A contrary interpretation would be absurd, because otherwise, a
child 7 years of age could be committed to jail.
I am mindful that this, in effect, renders meaningless the reference to
"jail" in the third paragraph of § 68, as inserted by St. 1969, c. 859, § 12,
and that ordinarily every word in a statute must be deemed to have been
intentionally used and to have meaning. Cf. Commonwealth v. Woods
Hole, Martha's Vineyard & Nantucket S.S. Authority, 352 Mass. 617;
Insurance Rating Board v. Commissioner of Insurance, 356 Mass. 184.
But the Supreme Judicial Court has also said that this rule can be dis-
pensed with if no other course appears to be open. Commonwealth v.
McMenimon, 295 Mass. 467. If any other interpretation were adopted, it
would run counter to the broad legislative intent to treat a child under 17
years of age differently from an adult, unless and until he is convicted
under § 83.
It is my opinion, therefore, that a child who has been bound over for
trial pursuant to G. L. c. 119, § 75, and c. 218, § 30, cannot be detained
in the Charles Street Jail if unable to furnish bail.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 28 April 11, 1973
Martin P. Davis, Chairman
Massachusetts Parole Board
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Mr. Davis:
You have requested my opinion regarding Section 4 of Chapter 888 of
the Acts of 1970 which replaced Chapter 123 of the General Laws with a
new Chapter 123, entitled "Treatment and Commitment of Mentally 111
and Mentally Retarded Persons."
Sections 113 through 124 of the previous c. 123 comprised a subsec-
tion entitled, "Defective Delinquents and Drug Addicts"; § 118A and
1 19 of said subsection set forth parole provisions with respect to the De-
fective Delinquent classification. More particularly, § 118A conferred
P.D. 12 101
jurisdiction on the Parole Board to parole such defective delinquents and
to discharge same upon the completion of five years of satisfactory
parole.
In brief, the new c. 123 has completely eliminated the defective delin-
quent classification as set forth in §§ 113 through 124 of the previous
chapter, and more specifically in § 113. The new law has, moreover,
abolished all existing defective delinquent departments as provided in §
1 17 of the previous c. 123. The new chapter, however, remains silent on
the general jurisdiction of the Parole Board with respect to the former
defective delinquent classification, more specifically: on the status of the
paroled defective delinquent presently under parole supervision, and on
the defective delinquent who is presently under active consideration for
parole release.
The language of the new c. 123 contains no textual reference what-
soever to the defective delinquent classification. Section 11 of c. 888 of
the Acts of 1970, however, does expressly refer to the former defective
delinquent sections as it sets forth a transitional reclassification proce-
dure relative to the transfer and discharge of incarcerated defective de-
linquents. But. here, too, there is no textual reference to the paroled de-
fective delinquent; hence, resolution of your questions, presented
below, turns on a fair application of the new language, impressed as it is
with a clear sense of orderly transition, to the wholly ignored matter of
the Parole Board's jurisdiction with respect to the former classification.
The general rule is well established that when a general power is given
or duty enjoined every particular power necessary for the exercise of the
one, or the performance of the other, is given by implication. See Heard
V. Pierce, 62 Mass. 338.
You have specifically asked the following questions in your letter:
"1. What is the general jurisdiction, if any, of the Parole Board in
reference to 'Defective Delinquents' as previously so classified
in the former Chapter 123 of the General Laws, as of
November 1, 1971?
"2. Is the classification of 'Defective Delinquent' to remain and, if
so, does the Parole Board have any jurisdiction or responsibil-
ity as to parole hearings or parole releases concerning such
classification, as of November 1, 1971?
"3. As to 'Defective Delinquent' presently under parole supervi-
sion in the community, what will be their status and the Parole
Board's jurisdiction and responsibility regarding them, whether
such 'Defective Delinquents' have been under parole supervi-
sion for five years or more, or for less than five years, as of
November 1, 1971?
"4. What action, if any should the Parole Board take as to discharg-
ing from parole 'Defective Delinquents', whether they have
been under parole supervision for five or more or for less than
five years, as of November 1, 1971?
102 P.D. 12
"5. If a 'Defective Delinquent' presently on parole release is con-
sidered to have violated parole, what is the Parole Board's
jurisdiction and responsibility in such an event, either before or
following November 1, 1971?
"6. Does the Attorney General wish to recommend any specific
actions to be undertaken by the Parole Board in reference to
the matter of 'Defective Delinquents' as so classified in the
previous Chapter 123 of the General Laws?"
In light of the above-stated general principles, I now turn to your
questions:
Question 1:
The Parole Board's jurisdiction with reference to the former classifi-
cation of defective delinquents has been abrogated by § 4 of c. 888 of the
Acts of 1970, which inserted a new mental health chapter in place of the
previous c. 123. The Parole Board, therefore, is without jurisdiction to,
in any way, further affect the status of any defective delinquent, except
to discharge any such paroled defective delinquent from his commitment
as a defective delinquent.
Question 2:
The defective delinquent classification, as set forth in former G. L. c.
123, §§ 113-124, more particularly § 113, has been completely eliminated
by § 4 of c. 888 of the Acts of 1970. which strikes out the old chapter
and inserts in place thereof a new chapter entitled, "Treatment and
Commitment of Mentally 111 and Mentally Retarded Persons."
Moreover, all existing defective delinquent departments are abolished
by the aforesaid section 4.
Section 11 of c. 888 of the Acts of 1970 provides for the transfer and
discharge of all defective delinquents committed to M.C.I. Bridgewater
and M.C.I. Framingham prior to the effective date of the new chapter.
In brief, the section provides that each defective delinquent shall be ex-
amined by a qualified physician who shall make a determination of such
person's mental condition. If it be determined that such person is so
dangerous by reason of mental illness that strict security is required, the
Commissioner of Correction shall act under the new c. 123 to transfer
such person, if male, to Bridgewater State Hospital. If it is determined
that the person is not so dangerous by reason of mental illness that strict
security is necessary, but that further care and treatment is required, the
Commissioner of Correction shall act under the new c. 123 to transfer
such person to a facility of the Department of Mental Health. If it is
determined that such former defective delinquent is no longer in need of
care and treatment, the Commissioner of Correction shall notify such
person of his right to be discharged from the correctional institution,
upon his giving the Commissioner written notice of his intention to
leave. The Parole Board will retain no jurisdiction over any former de-
fective delinquent transferred to Bridgewater State Hospital or any other
facility of the Department of Mental Health pursuant to said § 11.
P.D. 12 103
Question 3:
It is plain from a reading of § 11 of c. 888 of the Acts of 1970, that the
Legislature intended to ease and facilitate the elimination of the defec-
tive delinquent classification by imposing an orderly screening and re-
classification procedure whereby the new status of each former defec-
tive delinquent would be determined on the basis of an assessment of his
mental condition within one year of November 1, 1971; such a process
has been set forth above. It would seem to follow that the elimination
process should affect the paroled defective delinquent in a similar or-
derly fashion.
As the jurisdiction of the Parole Board to further affect the status of
any defective delinquent, except to discharge such person, is repealed,
as a starting point, all paroled defective delinquents as of November 1,
1971, regardless of the amount of parole served, should be summarily
discharged from their defective dehnquent commitment by the Parole
Board, irrespective of any language in § 118A of the previous c. 123 or
that of G. L. c. 127, § 130A, which conditions the termination of sen-
tence by the Parole Board on the completion of at least one year of satis-
factory parole. Pursuant to § 118A of the previous c. 123, each defective
delinquent paroled prior to November 1, 1971 was examined by two
psychiatrists approved by the Commissioner of Mental Health and ad-
judged to be a fit person for parole. That such person was so adjudged
and subsequently paroled by the Board would seem to adequately satisfy
any application of the § 1 1 reclassification procedure re transfer and dis-
charge of incarcerated defective delinquents, to the area of paroled de-
fective delinquents, provided, however, that the subject's parole officer
has no reason to recommend that the defective delinquent's mental con-
dition be reevaluated by the Department of Mental Health. If such
reason does exist, said defective delinquent, upon discharge from
parole, should be examined according to the procedures set forth in § 11
and treated by the Department of Mental Health in accordance with the
new c. 123.
Question 4:
All defective delinquents under parole supervision as of November 1,
1971, should be summarily discharged from their commitments irrespec-
tive of any prior statutory language or that of G. L. c. 127, § 130A.
Again, applying the § 11 screening procedure to the paroled defective
delinquent, it seems that such discharge by the Parole Board should be
final and unconditional, unless there is reason for the former defective
delinquent to be examined by the Department of Mental Health and re-
tained for further treatment. All former defective delinquents presently
under parole supervision should be notified in writing of their discharge
from said commitment.
Question 5:
All paroled defective delinquents adjudged to have been in violation of
their parole and who were subsequently recommitted to a defective de-
linquent department prior to November 1, 1971, should be discharged
104 P.D. 12
from such commitment by the Department of Correction and thereafter
subjected to the section 1 1 screening process or to any further approp-
riate legal action where such violation involved the commission of a new
crime.
As to paroled defective delinquents adjudged to have violated their
parole and who evaded arrest prior to November 1, 1971, all ensuing
warrants should be withdrawn and such persons discharged from their
commitments by the Parole Board: If the commission of a new crime
was involved, the former defective delinquent might be subject to a new
warrant.
Any former defective delinquent under parole supervision on or after
November 1, 1971, who is considered to be in violation of his parole
cannot be recommitted as a defective delinquent, as such classification
has been eliminated and all former defective delinquent departments
abolished. All such persons should be discharged from their defective
delinquent status, and subjected to the section 1 1 reclassification proce-
dure, or if the commission of a new crime is involved, to any further
legal action which might be appropriate.
Question 6:
It would seem advisable for the Parole Board to allow an informal re-
lationship between any former paroled defective delinquent and his
parole officer to continue under a mutually acceptable arrangement
where considered necessary for the parolee's well being.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 29 April 11, 1973
Honorable Bruce Campbell
Commissioner of Public Works
100 Nashua Street
Boston, Massachusetts 02114
Dear Commissioner Campbell:
You have inquired whether, upon the following facts, a check could
properly be issued to "Max Kaufman as assignee of Bertha B. Rip-
stein."
"On June 21, 1972, the Commissioners voted an award in
the total amount of $15,892.84 to Bertha B. Ripstein.
"Check no. 726998 dated August 30, 1972, in the amount of
$15,892.84 was issued payable to Bertha B. Ripstein and
State Mutual Life Assurance Company (mortgagee).
"The Department received a discharge of mortgage dated
July 24, 1972, and an assignment of the proceeds of the land
damage award by Bertha B. Ripstein to Max Kaufman. This
assignment was executed on July 25, 1972.
P.D. 12 105
''Check no. 726998 was submitted for revision requesting
that the payee be designated as Max Kaufman for the reason
that the mortgage was discharged and the owner had exe-
cuted an assignment.
"This was returned by the Comptroller with the comment
'the Commonwealth's responsibility in eminent domain pay-
ments is to the owner and/or mortgagee and not to an
assignee."
After the Commissioners made the award on June 21, 1972, her claim
against the Commonwealth thereby became a "chose in action." Under
G. L. c. 231. § 5. the assignee of a chose in action "which has been
assigned in writing, may maintain an action thereunder in his own name
..." This is so even though the assignee was not the owner of the prop-
erty at the time of the taking. Cf. Commonwealth v. Market Warehouse
Co.. 250 Mass. 449.
I conclude, therefore, that you can issue a check to the assignee.
There is no difference in legal effect between this case and cases involv-
ing assignment of relocation payments discussed in my opinion to the
Comptroller of the Commonwealth dated May 2, 1972 (No. 71/72-35),
copy enclosed.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 30 April 18, 1973
Honorable Frankland W. L. Miles, Jr.
Chairman, Massachusetts State College
Buildinii A uthority
65 Franklin Street
Boston, Massachusetts 02110
Dear Mr. Miles:
You have requested an interpretation of an opinion wherein I advised
the Lowell Technological Institute Building Authority that the Legisla-
ture, through the enactment of appropriation acts, could direct that Au-
thority to reimburse the Commonwealth for the cost of utilities furnished
by the Commonwealth to the Authority. See. Op. Atty. Gen., 71/72-21.
You suggest that a similar direction to the Massachusetts State College
Building Authority (the Authority) may render the Authority unable "
... to provide for the payment of current installments of interest and
principal on Authority obligations." and would amount to an amend-
ment of the Authority's Enabling Act (the Act) which states in part:
"The trustees may, in the name and on behalf of the com-
monwealth, upon such terms and with or without considera-
tion . . .
106
P.D. 12
(b) Cause . . . water, sewage or drainage facilities and simi-
lar improvements and steam service and other utilities and
connections for heating and other necessary purposes to be
furnished to or in any project carried out by the Authority."
St. 1963, c. 703, § 5(b).
Your letter further states the Commonwealth has guaranteed payment
of principal and interest on bonds issued by the Authority and that reim-
bursement to the Commonwealth for utility costs could require the
Commonwealth to perform its guaranty of payment.
In view of the foregoing, you request advice as to whether the Author-
ity must reimburse the Commonwealth as directed by St. 1970, c. 833, §
2 A and St. 1971, c. 719, § 2 A (the appropriation acts).' Specific appro-
priations for the cost of furnishing utilities for projects of the Authority
are as follows:
St. 1972, c. 514, § 2A
Item:
7109-0000
$3 1 ,000
Item:
7114-0000
42,000
Item:
7115-0000
34,000
Item:
Total
$107,000
St. 1971, c. 719, ^2A
Item:
7109-0000
$25,000
Item:
7114-0000
28,800
Item:
7115-0000
41,500
Item: Total
$95,300
(State College at Bridgewater)
(State College at Salem)
(State College at Westfield)
(State College at Bridgewater)
(State College ai Salem)
(State College at Westfield)
(State College at Bridgewater)
(State College at Salem)
(State College at Westfield)
St. 1970, c. 833, § 2 A
Item: 7109-0000 $21,000
Item: 7114-0000 19,000
Item: 7115-0000 28,000
Item: Total $68,000
On December 12, 1967, the Commonwealth, Board of Trustees of
State Colleges and the Authority, pursuant to section 5 of the Act, en-
tered into a "Contract For Financial Assistance" which provides in the
Sixth Article, that fees charged by the Authority:
"[SJhall be so fixed and adjusted in respect of the aggregate
of all revenues from the first project and from any other proj-
ect . . ., (\) so as to provide revenues sufficient (a) to pay the
cost of maintaining, repairing and operating the first project
and such other projects . . ., (b) to pay the principal of and
the interest on notes and bonds issued to finance or refinance
the First Project and any such other projects as the same
shall become due and payable . . ." (Emphasis supplied.)
' I nole that suhseqiient to your reqiie>t the Legislature enacted another appropriation act. St. 1972. c. 514. § 2A.
I:
P.D. 12 107
I note the above-quoted provision is almost identical to Section 9 of
the Act. A further part of the Sixth Article enables the Authority to re-
quest that the trustees, acting in the name of the Commonwealth, pro-
vide utilities. In an agreement entitled "Management and Services Ag-
reement — First Project" entered into by the trustees acting in the name
and on behalf of the Commonwealth, the trustees agreed, in the Second
Article. Section 3, to furnish "steam service, electricity, water, gas and
other utilities . . ."'
In my opinion the above-cited section of the Act and applicable con-
tractual provisions are consistent with the legislative direction to the Au-
thority that it reimburse the Commonwealth for funds expended to pro-
\ ide utilities for projects of the Authority. While section 5 of the Act
allows the trustees to provide the Authority with utilities in the name of
the Commonwealth, section 9 of the Act requires the Authority to gen-
erate revenues sufficient not only to pay the principal and interest on
bonds, but additionally to pay the cost of maintaining and operating pro-
jects. Undoubtedly utility costs constitute an element of maintaining and
operating Authority projects. Since revenue accumulations are au-
thorized to provide for both the management of Authority debt require-
ments and the maintenance and operation of Authority projects, a direc-
tion by the Legislature that the Commonwealth be reimbursed for funds
expended to supply the Authority with utilities is, in my opinion, in ac-
cord with the scheme of the Act.
It is my further opinion that the reimbursement requirement could not
result in an impairment of bondholders' security in derogation of the Act
since the real security underlying these obligations is the
Commonwealth's guaranty of payment of principal and interest. See,
Op. Atty. Gen., 7/72-21 citing. New Bedford v. New Bedford, W. //.,
V/. v. & v. SS. Aiitln., 336 Mass. 651, 657, appecd dismissed, 358 U.S.
53.
One additional point remains for clarification. The 1970 appropriation
act provided for transfer to the General Fund effective on July I. 1971
and provided for equal successive payments of $68,000 on the first day
of each fiscal year. The 1971 and 1972 appropriation acts both provided
for transfers to the General Fund effective on July I, 1972 and, respec-
tively, called for aggregate payments of $95,300 and $107,000. The 1971
and 1972 acts provided for successive payments the first of each fiscal
year. These subsequent enactments are, in my view, superseding, since
each appropriation legislates the same object. See, G. L. c. 29, § 15;
Homer v. Fall River, 326 Mass. 673, 679. When the 1970 appropriation
act became effective, a debt was created obligating the Authority to pay
the Commonwealth $68,000. It is my opinion that enactment of the 1972
appropriation act superseded both the 1970 and 1971 appropriation acts,
effective July 1, 1972. Therefore, the Authority's present obligation is to
transfer to the Commonwealth $68,000 for the debt created under the
1970 act and $107,000 in accordance with the 1972 appropriation act.
The Authority's obligation in the future will be transfer $107,000 to the
108 P.D. 12
Commonwealth the first day of each fiscal year, unless there is a super-
seding act to the contrary.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 31 April 18, 1973
Honorable William F. McRell
Acting Director
Division of Civil Service
294 Washington Street
Boston, Massachusetts 02108
Dear Mr. McRell:
I have a letter with attachments of correspondence between your of-
fice and the Solicitor's Office of the City of Cambridge. Your predeces-
sor asked to be informed "if the position of Deputy City Auditor in the
City of Cambridge is subject to the provisions of Chapter 31 of the Gen-
eral Laws."
Chapter 31 of the General Laws regulates the classified Civil Service,
vesting authority in the Civil Service Commission. Pertinent portions of
applicable sections of that chapter are set forth below:
"§ 3. Subject to the approval of the governor, the commis-
sion . . . shall make and may amend rules which shall regu-
late the selection and employment of persons to fill positions
in the official service and labor service ... of the cities . . .
thereof, which positions are subject to any provision of this
chapter.
"Such rules shall . . . include provisions for the following:
"(b) Including within the civil service offices and positions
not otherwise exempted by law and placing said offices and
positions in the official or labor service."
"§ 5. No rule made by the commission shall apply to the
selection or appointment of any of the following: —
*****
"Officers whose appointment or election is by a city coun-
cil, or subject to its confirmation, except those expressly
made subject to this chapter by statute."
"§ 47. This chapter shall be in force with respect to the of-
ficial and the labor service in all cities of the commonwealth
of one hundred thousand or more inhabitants, whether or not
such cities have accepted this chapter or corresponding pro-
visions of earlier law ..."
P.D. 12 109
The City of Cambridge has more than one hundred thousand inhabit-
ants and c. 31 is in force in that city. The position in question, namely,
deputy auditor, was created pursuant to G. L. c. 41, § 49A, which pro-
vides, in part:
"The auditor . . . of a city . . . may in writing appoint, with
the approval of the mayor . . . thereof, an assistant . . /'
Your predecessor advised the office of the Solicitor of the City of
Cambridge that the office of Deputy Auditor of that city is subject to the
Civil Service Law and Rules because the exemption in G. L. c. 31, § 5
relates only to "Officers whose appointment or election is by a city
council, or subject to its confirmation," and because appointment of a
Deputy Auditor pursuant to G. L. c. 41, § 49A must be made "with the
approval of the mayor." However, the City Solicitor has argued that G.
L. c. 43, § 95 vests control in the City Council except where it is specifi-
cally reserved to the City Manager; that G. L. c. 43, § 103, which spells
out the powers of the City Manager, specifically excepts control over
the City Auditor; and that therefore "control is then vested by Section
95 of Chapter 43 in the City Council." However, § 95, in delineating the
authority of the City Council, specifically provides "except that . . . the
city auditor . . . shall have the powers and duties which may be confer-
red and imposed ... by law." As we have seen, the City Auditor is
empowered to appoint a Deputy Auditor, but only "with the approval of
the mayor" and I find nothing in the provisions of law relating to PLAN
E. Government which changes that proviso to "approval of the City
Council." Indeed, G. L. c. 41, § 49A which requires the approval of the
Mayor and was enacted in 1948 and amended in 1964 (St. 1948, c. 211;
St. 1964, c. 70) must be deemed to have added that power to the general,
though limited, powers of the Mayor, referred to in the earlier statute,
G. L. c. 43. § 100, which was enacted in 1938 and amended in 1941 (St.
1938, c. 378, § 15; St. 1941, c. 722, § 5).
I conclude, therefore, that the office of Deputy Auditor of the City of
Cambridge is subject to the Civil Service Law and Rules because there
is no provision of law which exempts it.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 32 April 5, 1973
Mrs. Mabel A. Campbell
Director of Civil Service
294 Washington Street
Boston, Massachusetts 02108
Dear Mrs. Campbell:
On November 15, 1972. I rendered an opinion to you which stated in
pertinent part:
110 P.D. 12
"With respect to your question concerning domicile, it is
my opinion that you are prohibited from restricting entrance
to any examination on the basis of domicile or from according
preference on eligible lists on the basis of domicile on the
same bases outlined above."
As a result of that opinion, you now pose the following questions:
"1. What effect does the opinion have on the new police
residency law, Chapter 226 of the Acts of 1972,
which amends G. L. c. 31. s. 48A. copy attached?
"2. What effect does the opinion have on other provi-
sions of said s. 48A "*** provided, however, that
notwithstanding the provisions of any general or
special law to the contrary, any person who receives
an appointment to the police force of a city or town
shall within nine months after his appointment estab-
lish his residence within such city or town or at any
other place in the commonwealth that is within ten
miles of the perimeter of such city or town.***'?
(See also, G. L. Chapter 48. s. 58E and G. L. Ch.
41, s. 99A)
"3. Is the opinion retroactive so that we must combine
all similar eligible lists now in existence so that we
will have only one list for each position in the Offi-
cial Service and only one list for each position in the
Labor Service?
"4. If the answer to question #3 is in the affirmative, a
very serious problem arises in combining eligible
Labor Service lists for municipalities with the State
Labor list in order to have just one eligible list from
which to certify. Placement on the Labor Service list
is governed by the date the applicant registers at
which time he is given a registration number. His
name is placed on the list according to that registra-
tion number, veterans being placed ahead of non-
veterans. In order to combine all municipal Labor
Service lists with the State Labor Service list it will
be necessary to look at each eligible card to ascer-
tain the date of registration for placement on one
combined list. At the present time there are approx-
imately 33,000 names on the State Labor list, ap-
proximately 12,000 on the Boston Labor list and ap-
proximately 40,000 names on the lists for all other
municipalities.
"'5. If there is one combined labor list, what method is to
be used to certify names for a position in the town of
Agawam? Will the certification be made regardless
of residence so that in sending out the first one
P.D. 12 111
hundred names (which will be those of veterans)
there may not be one person in that one hundred
names who will reside in Agawam or in the Agawam
area?
''6. What is 'a compelling governmental interest' to
which reference is made in the opinion?' For in-
stance, if a position in Agawam requires a person to
live in that area for availability to his employment,
such as in the Water Department where an
emergency may arise, and in police and fire depart-
ments where persons should live close to the loca-
tion of employment in case of emergency, are these
compelling governmental interests?
"7. In the case cited in question #5. could the appoint-
ing authority pass by persons who do not live within
the Agawam area?
"8. Will it be necessary to amend all of our applications,
both Official Service and Labor Service, and all of
our examination announcements by striking out any
reference to United States citizenship?
"9. Do we now have to advertise all of our examinations
all over the United States or only on a state-wide
basis as we presently do?
"10. Do we now have to advertise our municipal exami-
nations all over the nation, only on a state-wide
basis, or only on a municipal basis as we presently
do?
"11. On page 5 of the opinion, the third sentence states
it might be desirable to impose a requirement that
applicants be residents of the United States at time
of application. In view of the opinion that durational
residency and citizenship requirements arbitrarily
imposed are unconstitutional, isn't the suggestion on
page 5 unconstitutional?
"12. What happens when there is a language barrier? If
the position to be filled requires a working know-
ledge of English, are we required to examine in any
other language?"
With respect to question #1, for the reasons stated in my opinion
to you of November 15, 1972. it is my opinion that the following
portion of Chapter 226 of the Acts of 1972 is unconstitutional:
"If any person has resided in a city or town for one year
immediately prior to filing his application for examination and
has the same standing as any person who has not so resided
in such city or town, the director of civil service, when estab-
lishing the list of eligible applicants, shall place the name of
112 P.D. 12
the person so residing ahead of the name of the person not so
residing, or upon written request of the appointing authority
to the director, the director shall place the names of all per-
sons who have resided in a city or town for one year im-
mediately prior to the date of examination ahead of the name
of any person not so residing, provided that the request is
made prior to establishment of the eligible list."'
With respect to question #2. I am of the opinion that the residency
requirements therein may rationally be deemed necessary to promote a
compelling governmental interest, i.e., the promotion of the safety and
welfare of residents of the cities and towns of this Commonwealth. In
the same vein, it is my opinion that § 58E of G. L. c. 48, and § 99A of
G. L. c. 41 contain constitutionally valid residency provisions. Both of
these sections attempt to insure that tuemen and policemen responsible
for the safety and welfare of a particular community (1) will be suffi-
ciently familiar with local conditions and geography to successfully per-
form their duties, and (2) after acquiring such familiarity will be residing
in sufficient proximity to the particular community so that their services
may be promptly rendered in times of emergency.
With respect to question #3, this opinion is prospective only in the
sense that it is not intended to invalidate past appointments. However,
in so far as any future appointments are affected no preference may be
awarded an applicant because of the place of his residency prior to the
time of his appointment to the position. Job-related residency require-
ments after appointment to the position may be perfectly valid, if. in the
particular position, compelling governmental interests are thereby pro-
moted. If, in order to comply with this opinion, all eligible lists now in
existence must be combined and scrutinized, then such administrative
steps must be taken forthwith.
I decline to comment on question #4 since (1) it is not in question
form and (2) it concerns itself with the administrative implementation of
the spirit of this opinion, the mechanics of which are more properly
within the purview of your Division.
With respect to question #5, I decline to advise you of the specific
methodology to be utilized in the certification of names for a position in
a particular town, e.g., Agawam, beyond reiterating that the certification
and ultimate appointment of any candidate may not be influenced by the
place of the candidate's residence without a compelling governmental in-
terest.
With respect to question #6, there is no absolute definition of the
phrase "compelling governmental interest." Rather, this criterion is a
fluid and flexible "rule of thumb" which approaches concreteness only
in the context of a particular fact pattern. As indicated earlier in this
opinion, once an applicant has entered the employ of a local police or
fire department, then the ubiquitous emergency variable inherent in such
service would, in my opinion, fall within the "compelling governmental
interest" guideline referred to above. In this connection. I stiess that
!
P.D. 12 113
administrative determinations of a compelling governmental interest will
be scrutinized more carefully than a similar determination made by the
Legislature. The Commission, and a fortiori an appointing authority,
should therefore have substantial facts readily available so as to justify
any requirement imposed at the administrative level.
With respect to question #7, it is my opinion that absent a compelling
governmental interest, the appointing authority may not pass by persons
on one combined labor list who do not live in the Agawam area for pur-
pose of certification for an appointment to a civil service position in that
area.
With respect to question #8, I refer you to my opinion of November
15. 1972, and hereby inform you that none of your examination an-
nouncements may contain any reference to United States citizenship.
With respect to questions #9 and 10, it is my opinion that there is no
constitutional requirement that you must advertise any of your examina-
tions on a nation-wide basis, although you must furnish an examination
application and application information to any out-of-state person who
requests same. With respect to examinations for municipal positions and
the question of whether or not they must be advertised on a state-wide
basis, it is my opinion that state-wide advertisement is not constitution-
ally required although it may be desirable if the Division of Civil Service
wishes to maximize equality of opportunity for public service em-
ployment for all citizens in the Commonwealth. Such a decision may be
intluenced by the financial and administrative feasibility of such a prac-
tice.
With respect to question #1 1, it is not unconstitutional for your Divi-
sion to require that applicants be residents of the United States at time
of application. Rather, the unconstitutional practice is to require either
(I ) that the candidate be a United States citizen, or (2) that the candidate
prior to appointment, be a resident of a particular town, city, or state of
the United States.
With respect to question #12, a civil service examination, to be con-
stitutional, must be predictive of successful performance on the job. If in
your judgment successful performance in the position to be filled re-
quires a working knowledge of English, then you are not required to ex-
amine in any other language. Indeed, where the position to be filled re-
quires a high level of education, e.g., police officers, examination in En-
glish is imperative. Castro, et al. v. Beecher, et al.. United States Court
of Appeals for the First Circuit, Nos. 71-1180, 71-1395, 71-1396, April
26, 1972.
Very truly yours,
ROBERT H. QUINN
Attorney General
14 P.D. 12
Number 33 April 24, 1973
Honorable Robert Q. Crane
Treasurer and Receiver General
Chairman, State Board of Retirement
13 Tremont Street
Boston, Massachusetts 02108
Dear Mr. Crane:
This is in response to your request for an opinion whether the State
Board of Retirement may now entertain an application for accidental
disability retirement where the state employee in question was originally
retired for ordinary disability retirement under G. L. c. 32, § 6. You ad-
vise that the employee has requested that the Board reconsider the orig-
inal application as one for accidental disability retirement rather than or-
dinary disability retirement.
The statute of limitations set forth in G. L. c. 32, § 7 with respect to
applications for accidental disability retirement is quite strict. Except for
applications filed within two years of attaining the maximum age for re-
tirement (which I assume is not in question here) such applications may
not be filed "unless such injury was sustained or such hazard was un-
dergone within two years prior to the filing of such application or, if oc-
curring earlier, unless written notice thereof was filed with the board by
such member or in his behalf within ninety days after its occurrence."
G. L. c. 32, § 7(1).
Unless notice was received as specified in the statute, the Board may
not now treat the original application for ordinary disability retirement
as amended into one for accidental disability retirement. The employee
must be deemed to have made an election when filing his original appli-
cation, and he cannot now amend it after the statute of limitations has
run unless the notice provisions of section 7 were complied with.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 34 April 26, 1973
Honorable Robert Q. Crane, Chairman
Massachusetts State Lottery Commission
One Gateway Center
Newton, Massachusetts 02158
Dear Mr. Chairman:
You have requested my opinion whether the Massachusetts Lottery
Commission may institute a new type lottery called "The Instant
Game." The Commission proposes to implement this new lottery to,
inter alia, raise added revenue for the cities and towns of the Com-
monwealth.
P.D. 12 115
You state that a purchaser of an Instant Game ticket can open the
ticket and determine instantly whether he is a winner. Game prizes will
be in amounts of $2, $10. $100, $1,000. The Commission proposes to au-
thorize each of its licensed, bonded vendors to pay in cash the $2 and
$10 prizes, and to authorize instant payment of $100 prizes at each of
approximately 60 bonded Claim Centers located throughout the Com-
monwealth.
Licensed, bonded vendors authorized to pay in cash the $2 and $10
prizes would receive tickets for the Instant Game on consignment. You
state that periodically, the vendors would return unsold tickets and pay
the Commission for tickets sold less money they had paid as prizes, and
less their commission. The winning tickets supporting the amounts paid
out as prizes would be returned to the Commission where they would be
audited for correctness.
The Commission plans to provide Claim Centers with specially de-
signed checks for $100 signed by either the State Treasurer or the Lot-
tery Director. Claim Center personnel would fill in the winner's name as
payee and countersign the checks. They would sign and issue checks
only after receiving from the Commission specific telephone authoriza-
tion for each winner and check. Payment of $100 prizes by Claim Cen-
ters will be made from funds in the hands of the State Treasurer.
You state that none of the licensed vendors and few of the Claim Cen-
ters are state offices with state employees.
In seeking my opinion regarding the Commission's authority to im-
plement the Instant Game, you are particularly concerned whether
non-state employees may countersign checks for $100 prizes, and
whether the proposal conflicts with any of the provisions of G. L. c. 29.
For the reasons hereinafter stated, I am of the opinion that the Commis-
sion has authority to implement the Instant Game as outlined in your
opinion request.
Constitutional and statutory provisions pertinent to the state treasury
are not applicable to payments of $2 and $10 prizes by licensed, bonded
vendors. Such payments are made by vendors from their own funds, and
do not involve monies either paid to the Commission or in the control of
the State Treasurer.
You state that payment of $100 prizes by Claim Centers will be made
from "funds in the hands of the State Treasurer." Proceeds of lottery
ticket sales are placed in a State Lottery Fund in the State Treasury:
"There shall be established and set up on the books of the
commonwealth a separate fund, to be known as the State
Lottery Fund. Said fund shall consist of all revenues received
from the sale of lottery tickets or shares, and all other monies
credited or transferred thereto from any other fund or source
pursuant to law." G. L. c. 10, § 35.
Monies in the State Lottery Fund only can be expended for certain
designated purposes:
116 P.D. 12
"The state lottery fund shall be expended only for the fol-
lowing purposes; (a) for the payment of prizes to the holders
of winning lottery tickets or shares; (/?) for the expenses of
the commission in administering and operating the lottery, as
certified by the commissioner of administration, and the state
treasurer shall transfer said amount to the General Fund; and
(c) the balance of said fund, as determined by the comptrol-
ler, on June thirtieth and December thirtieth of each calendar
year, shall be credited to the Local Aid Fund established
under the provisions of section two D of chapter twenty-nine,
and shall be distributed to the several cities and towns in ac-
cordance with the provisions of section eighteen C of chapter
fifty-eight." G. L. c. 10, § 35.
Generally, monies received by a private, public or quasi-public corpo-
ration are not monies "received on behalf of the commonwealth" which
"shall be paid into the treasury thereof." Massachusetts Constitution:
Amendments, Art. 63, § 1. See Opinion of the Justices, 261 Mass. 523,
550; Opinion of the Justices, 334 Mass. 721, 734; Norton v. Attorney
General, 269 Mass. 503, 511-512; and see generally. Opinion of the
Justices, 309 Mass. 571, 583-587. However, because the State Lottery
Commission is an instrumentality of the Commonwealth, monies placed
into the State Lottery Fund are Commonwealth monies in the State
treasury within the meaning of Art. 63, § 1.
The manner of drawing money from the State treasury is regulated by
Massachusetts Constitution. Pt. 2, c. 2. § 1. Art. 11, which provides as
follows:
"XL No moneys shall be issued out of the treasury of this
commonwealth, and disposed of (except such sums as may be
appropriated for the redemption of bills of credit or
treasurer's notes, or for the payment of interest arising
thereon) but by warrant under the hand of the governor for
the time being, with the advice and consent of the council, for
the necessary defence and support of the Commonwealth;
and for the protection and preservation of the inhabitants
thereof, agreeably to the acts and resolves of the general
court."
Also. G. L. c. 29. § 18 regulates the payment of monies from the
treasury of the Commonwealth:
"Except as otherwise provided, no money shall be paid by
the commonwealth without a warrant from the governor
drawn in accordance with an appropriation then in effect,
and after the demand or account to be paid has been certified
by the comptroller . . . (Emphasis supplied.)
The Supreme Judicial Court recently described the purposes and
scope of Article 63 as follows:
"Article 63 of the Amendments to the Constitution was
adopted following the Constitutional Convention of
ll
P.D. 12 117
1917-1918. The debates in the Convention (hereinafter refer-
red to as the Debates) and various convention documents
confirm what the amendment itself shows, that the underlying
purpose of the amendment was to centralize, and improve
control of, the Commonwealth's funds and to insure careful
consideration of their expenditure. See 3 Debates, 1153-1156,
1170, 1175-1178, 1193, 1203-1204, 1206-1207. See Convention
Docs. Nos. 57, 275, 276, 277, 280, 325, 411, 420. The par-
ticipating members of the Convention directed their remarks
to appropriations and expenditures of funds held in the treas-
ury of the Commonwealth for the Commonwealth's account.
So far as this court or the Justices in advisory opinions have
had occasion to consider art. 63, that article has been recog-
nized as having application to the Commonwealth's budget
and expenditures and to appropriations from the
Commonwealth's treasury. Opinion of the Justices, 297
Mass. 577, 580-581. Opinion of the Justices, 300 Mass. 630,
635-636. Baker v. Commonwealth, 312 Mass. 490, 493.
Opinion of the Justices, 334 Mass. 716, 718-720. See Opinion
of the Justices, 308 Mass. 601, 608-618. Funds received, or
proposed to be received, in part at least, in behalf of subdivi-
sions, agencies, or other instrumentalities of the Common-
wealth have been treated as on a different basis. See Dane v.
Treasurer and Recr. Gen., 237 Mass. 50, 52; Knights v.
Treasurer & Recr. Gen., 237 Mass. 493, 496. See also
Opinion of the Justices, 261 Mass. 523, 550; Morton v.
Attorney Gen., 269 Mass. 503, 511-512; Opinion of the
Justices, 334 Mass. 721, 734-735." Opinion of the Justices,
349 Mass. 804, 807, 808. (Emphasis supplied.)
Although the Justices did not mention each of the constitutional and
statutory provisions regulating payments from the State treasury, the
discussion of Article 63 is pertinent to the various constitutional and
statutory provisions cited, supra. Like Article 63, these provisions have
''application to the Commonwealth's budget and expenditures and to
appropriations from the Commonwealth's treasury." Id. at 807. (Em-
phasis supplied.) See Singleton v. Treasurer and Receiver General, 340
Mass. 646, 649. In the typical case, where payments from the treasury
are made pursuant to statutes appropriating funds, the various statutes
and constitutional provisions referred to come into play. Opinion of the
Justices, 309 Mass. 571, 583 ("Authorization for payments out of the
treasury 'must, at least ordinarily, be given by statutes making appropri-
ations therefor,' . . .").
In view of the foregoing, it is significant that payments of $100 prizes
to Instant Game winners will not come from State appropriations and
will not be related to the expenses of the Commonwealth as set forth in
the State budget. Instead, payments to such prize winners would come
from the proceeds of the sale of lottery tickets, and not from revenues
received, for example, through taxation:
118 P.D. 12
"The apportionment of the total revenues accruing from
the sale of lottery tickets or shares and from all other sources
shall be as follows: — (a) the payment of prizes to the holders
of winning tickets or shares which in any case shall be no less
than forty-five per cent of the total revenues accruing from
the sale of lottery tickets. . . /* (Emphasis supplied.) G. L. c.
10. § 25. i"
I am of the opinion that the procedures outlined in the constitutional
and statutory provisions pertaining to disbursements from the State
treasury are not controlling where as here that part of the State Lottery
Fund dealing with prize money ""has no . . . direct connection with the
budget of the Commonwealth or with appropriation and expenditure of
State funds or State-collected funds ..." Opinion of the Justices, 349
Mass. 804. 810.
Although the statutes pertinent to the State Lottery Commission make
no provision for non-state employees to countersign prize checks, the
Commission is given broad authority and discretion with regard to all
aspects of the operation and administration of a State lottery, including
how payments of prizes are to be made:
"The commission is hereby authorized to conduct a state
lottery and shall determine the type of lottery to be con-
ducted, the price, or prices, of tickets or shares in the lottery,
the numbers and sizes of the prizes on the winning tickets or
shares, the manner of selecting the winning tickets or shares.
the manner of payment of prizes to the holders of winning
tickets or shares, the frequency of the drawings or selections
of winning tickets or shares and the type or types of locations
at which tickets or shares may be sold, the method to be used
in selling tickets or shares, the licensing of agents to sell tick-
ets or shares, provided that no person under the age of
twenty-one shall be licensed as an agent, the manner and
amount of compensation, if any. to be paid licensed sales ag-
ents, and such other matters necessary or desirable for the
efficient and economical operation and administration of the
lottery and for the convenience of the purchasers of tickets or
shares and the holders of winning tickets or shares. Each
state lottery ticket or share and each coupon or receipt
thereof shall have imprinted thereon the state seal, and a ser-
ial number. The commission may establish, and from time to
time revise, such rules and regulations as it deems necessary
or desirable and shall file the same with the office of the state
secretary. The commission shall advise and make recommen-
dations to the director regarding the operation and administ-
ration of the lottery. The commission shall report monthly to
the governor, the attorney general and the general court, the
total lottery revenues, prize disbursements and other ex-
' State appropriations are involved in the operation of the lottery onU with regard to administrative costs. G. L. c. 10. §
25(b).
P.D. 12 119
penses for the preceding month, and shall make an annual re-
port to the same which shall include a full and complete
statement of lottery revenues, prize disbursements and other
expenses, including such recommendations as it may deem
necessary or advisable. The commission shall report im-
mediately to the governor and the general court any matters
which require immediate changes in the laws of the com-
monwealth in order to prevent abuses and evasions of the lot-
tery law or rules and regulations promulgated thereunder or
to rectify undesirable conditions in connection with the ad-
ministration or operation of the state lottery." (Emphasis
supplied.) G. L. c. 10. § 24.
The Supreme Judicial Court has advised the Senate and House of
Representatives that "it would not be proper to authorize the selection
of persons to expend public funds by organizations or groups not them-
selves public bodies or made up of public officers." Opinion of the
Justices. 337 Mass. 777, 784; Opinion of the Justices, 347 Mass. 797,
799-800. In both opinions the Court was asked for advice with regard to
proposed legislation which would permit entities made up of non-public
officers to expend appropriated funds. 1 am of the opinion that these
opinions are not controlling where as here the funds (in the form of $100
checks) at issue would neither be received into the public treasury
through taxation nor be expended pursuant to an appropriation. The
broad language of G. L. c. 10. § 24. quoted supra, provides authority for
the Commission to establish a procedure of payment of prizes which
utilizes non-state employees to countersign $100 prize checks. 1 would
point out. however, that because Claim Centers are in effect custodians
of Commonwealth funds entrusted to the State Treasurer, the bond of
the Treasurer. G. L. c. 10. § 2. as well as the bonds of licensed Claims
Centers, would be applicable to payments not authorized by G. L. c. 10,
§35.
For the aforesaid reasons. 1 am of the opinion that the Commission
has authority to implement the proposed Instant Game.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 35 May 2. 1973
Mrs. Glendora Putnam. Chairman
Massachusetts Commission Against
Discrimination
120 Tremont Street
Boston. Massachusetts 02108
Dear Mrs. Putnam:
You have requested my opinion concerning the constitutionality of
120 P.D. 12
Chapter 786 of the Acts of 1972.^ the so-called "anti-blockbusting" sta-
tute. In your request, you raise two specific questions:
"(1) Whether or not the act referred to above is so vague as to be
void and unenforceable, particularly with respect to the [sic]
Section 1 which requires promulgation of special regulations
applicable to neighborhoods threatened by deterioration.
"(2) Whether or not the above referred to act violates the free
speech amendment of the Constitution of the United States."
I will answer your second question first.
No cases have been tried under c. 786 but the free speech question
has been raised in the context of the federal anti-block-busting statute.'
In United States of America v. Bob Lawrence Realty, Inc., et al.,^
the statute was upheld against allegations that it violated the First
Amendment of the U. S. Constitution. The Court of Appeals affirmed
the views of the trial court, below:^
"It is evident that the statute did not make mere speech un-
lawful. What it does make unlawful is economic exploitation
of racial bias and panic selling."
The Appeals Court went on to indicate that § 3604(e) regulated com-
merce, not speech, and supported its position by agreeing with the
analysis of the court in U . S. v. Mintzes'^ as correctly interpreting the
statute.
"The words 'for profit,'*^ as used in Section 3604(e) include
the purchase of propertv by prohibited means with the hope
of selling it for a larger price, but the words are not limited to
such a transaction. They were evidently included in § 3604(e)
to distinguish and eliminate from the operation of that sub-
section statements made in social, political or other contexts,
as distinguished from a commercial context, where the person
' The text of c. 78fi is attached as Appendix "A".
- § 804. Discniniiuilutn iii tlic \ulc or niuiil oj liDiisiiit;. — As made applicable hy Section 803 and except as exempted hy
section 803(bl and 807. it shall be unlawful —
(e) /or profit to induce or attempt to induce any person to sell or rent any dwelling by representations regarding the entry
or prospective entry into the neighborhood of a person or persons of a particular race, color, religion, or national origin."
(Emphasis supplied.) § 804(e) of Title Vlll of the Civil Rights Act of 1968. 42 U.S.C. § .3604(e).
■' F.2d , P-H Eq. Op. in Hous. 1.3.584 (5lh Cir.. Feb. 13, 1973).
' 313 F. Siipp. 870, 872 (N.D. Ga. 1970).
^ 304 F. Supp. 870. 872 (N.D. Ga. 1970).
■' 304 F. Supp. 1305, 1312 (D. Md. 1969).
P.D. 12 121
making the representation hopes to obtain some financial gain
as a result of the representations."
The court thereby restricted the applicability of the statute to those
who stood to gain financially from violating the Act:
"If § 3604(e) were to reach a noncommercial statement, a
political statement, or a purely informational statement, it
would naturally be subject to First Amendment attack."
The 1972 Massachusetts statute raises the questions which were
avoided in Boh Lawrence. The statute prevents any person, not just
those motivated by profit, from making (1) implicit or explicit represen-
tation regarding the entry of certain persons into the neighborhood;' (2)
unrequested contact for the purpose of inducing the sale, purchase, or
rental with the knowledge that the contact will be associated with the
entry of certain persons;'* (3) implicit or explicit false representations re-
garding the availability of suitable housing;-* or (4) false representations
regarding the listings or prospective sale of any dwelling.'" Section
4.13(a) would, for example, on its face, be applicable to any neighbor or
resident and create liability against that person for discussing these fears
or predictions of changing neighborhoods with others similarly situated.
The fact that this statute was designed to protect this homeowner or re-
sident is particularly ironic when he or she might be held liable for dam-
ages under it. In State of Maryland v. Wai^ner,'^^ a statute quite similar
to c. 15 IB, § 4.13(a) was held not to violate the Free Speech Amend-
ment when applied to one who sought to induce a person to transfer an
interest in real property by making representations prescribed by the sta-
tute without averring that Mrs. Wagner acted for monetary gain. Under
Boh Lawrence and Mintzes, the logic of Wagner must fall.
If "anti-blockbusting" legislation is constitutional, then it must surely
be limited to those who seek to exploit others and not the victims of that
exploitation who verbalize those fears. As the U. S. Court of Appeals
recently wrote:
"[The] First Amendment doesn't provide the same degree
of protection to purely commercial activity that it does to at-
tempts at political persuasion. "'-
' c. I51B. § 4.13(a).
■ c. I.'^IB. §4.I.'?lbl.
"c. I5IB. § 4.1.1(c).
'" c. 151 B. §4. 1.1(d).
" 291 A. 2d 161, I'H Fq. Op. in Housing l.s.lOS (C't. of Spec. App. of \1d.. June 1. 1972).
'■' niiilicn V. I'mhlmk I'nnl liiiildcrs. 424 |-.2d 2.'5 (IM Cir. 1970).
122 P.D. 12
The Supreme Judicial Court has noted that in a commercial context,
the First Amendment cannot be claimed in all relations, at all times, and
in all places in support of absolute freedom from reasonable regulation.''^
It is my opinion, therefore, that only those who are alleged to have
violated the statute for profit can be named as respondents under sub-
section 13 of § 4 of c. 151 B. I reach that conclusion in order to remedy
the constitutional infirmity in the statute inherent in a broader interpreta-
tion. Thames v. Commomvealth, 355 Mass. 203, 207 and cases cited. I
now turn to your first question.
It is a general rule of statutory construction that a ''statute which
either forbids or requires the doing of an act in terms so vague that men
of common intelligence must necesssarily guess at its meaning and differ
as to its application, violates the first essential of due process of law." *^
I am also guided by the principle that "a governmental purpose to con-
trol or prevent activities constitutionally subject to state regulation may
not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms. '''•' In order to determine
whether the statute is vague or overbroad we must look to the context of
the actions being proscribed. One trial court has examined the transfor-
mation of a residential neighborhood and made the following finding:
"First, a sense of panic and urgency immediately grips the
neighborhood and rumors circulate and recirculate about the
extent of the intrusion (real or fancied), the effect on property
values and the quality of education. Second, there are sales
and rumors of sales, some true, some false. Third, the fren-
zied listing and sale of houses attracts real estate agents like
flies to a leaking jug of honey. Fourth, even those owners
who do not sell are sorely tempted as their neighbors move
away, and hence those who remain are peculiarly vulnerable.
Fifth, the names of successful agents are exchanged and re-
commended between homeowners and frequently the agents
are called by the owners themselves, if not to make a listing
then at least to get an up-to-date appraisal. Constant solicita-
tion of listings goes on by all agents either by house-to-house
calls and/or by mail and/or by telephone, to the point where
owners and residents are driven almost to distraction. "'"
Again, by limiting the potential violators of § 4.13 of c. 151 B to those
motivated by profit, it is my opinion that c. 786 of the Acts of 1972 is not
so "vague as to be void and unenforceable." I am confident that the
" Cumnuinwciillh v. Pascoiw. 308 Mass. 591, 596.
"Connolly V. (Icncriil Construction Co.. 269 U.S. .385. 391. Commonwealth v. Slomc. 321 Mass. 713, 715.
Commonwealth v. Carpenter. 325 Mass. 519, 521. Alei;ata v. Commonwealth. 353 Mass. 287, 293.
'■• Zwickler v. Koota. 389 U.S. 241. 249-250.
"■ United States v. Mitchell. 335 F. Siipp. 1004. 1005-06 (N.D. (ia. 1971).
P.D. 12 123
Commission Against Discrimination and the Department of the Attor-
ney General can. in compliance with § 1 of the Act. "'adopt, promulgate,
amend, and rescind rules and regulations . . . for the purpose of carrying
out the provisions of subsection 13 of section four."
As to other statutes which might conflict with c. 786. 1 only note in
passing that section three states the intent of the General Court that the
Act is not to be construed to limit any other law '"designed to protect
sellers or buyers of residential property or to prevent conduct inimical to
the stability, development, or safety of residential areas."
I trust that this opinion sufficiently resolves your constitutional ques-
tions to enable you to discharge the duties required of you by law.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 36 May 2. 1973
Honorable William F. McRell
Actuiii Director
Division of Civil Service
294 Washington Street
Boston, Massachusetts 02108
Dear Mr. McRell:
Your predecessor requested my opinion on three questions relating to
civil service employees working in the Division of Employment Security
(DES) in the Department of Labor and Industries. Initially, 1 am asked
whether G. L. c. 31, § 15, par. B(2) requires the DES to fill all vacancies
in higher positions as promotions.
General Laws, c. 31, § 15, par. B(2) provides, in part:
"All promotions in the official service of the division of
employment security in the department of labor and indus-
tries shall be made in accordance with paragraph A or the
provisions of this clause."'
The statute limits the manner in which the DES may fill vacancies in
higher positions by promotions. When filling such a vacancy by promo-
tion, the DES is restricted to the procedures set forth in G. L. c. 31. §
15, pars. A, B(2). However, the statutory provision does not require the
DES to fill every vacant position by promotion. The provision of § 15,
par. B(2) quoted, supra, only applies once the decision is made to fill
such a position by promotion.
General Laws, c. 31, § 15, par. B(l) provides in part as follows:
"Except as otherwise provided in section twenty, all
promotions in the official service in a department shall be
made (a) in accordance with paragraph A. (h) after a depart-
mental promotional examination subject to this clause or after
' Mthoiiiih "IhiN cl;iuse" rs i\ somcwh^it indefinite lerm, I eonsidei the releiencc to he to § l'^. piir. Bl2).
124 P.D. 12
a departmental promotional examination subject to clause (2)
of this paragraph, (c) after an executive office promotional
examination, (d) after a competitive promotional examina-
tion, or (e) the position shall he filled as the result of an open
competitive examination, whichever method shall be selected
by the appointing authority, with "the approval of the direc-
tor ..." (Emphasis supplied.)
Clause (e) of this provision explicitly gives an appointing authority
such as the DES discretion to seek to fill a higher vacancy by holding an
open competitive examination. Although not defined in G. L. c. 31, § 1,
an "open competitive examination" is a separate and distinct method
available to an appointing authority whereby he may fill a vacancy in a
higher position. This type of examination is to be distinguished from the
various types of "promotional" examinations which an appointing au-
thority may propose to utilize. G. L. c. 31, §§ 1, 15, par. B(l).
For the foregoing reasons I am of the opinion that G. L. c. 31, § 15,
par. B(2) does not require the DES to fill vacancies in a higher position
as promotions, and in no way precludes the DES from holding an open
competitive examination.
In addition to the foregoing, my opinion is sought as to whether "an
appointing authority requesting an open competitive examination [is] re-
quired, in making his determination that there is no one qualified and
willing to accept a promotion, to inform each employee in the next lower
grade or grades of the existence of the vacancy and that he is being can-
vassed for the position, and to justify to the Director of Civil Service his
statement upon being requested to do so."
This Department has previously advised the Director, by letter dated
November 13, 1972, that you may require an appointing authority who
requests an open competitive examination (rather than a departmental
promotional examination) in order to fill a position above the entrance
level of his department or agency to submit a statement to you that there
exist no permanent civil service employees in a lower grade who are
qualified and willing to accept promotion to the position. You were ad-
vised that such a requirement could be imposed in order to enable you to
determine whether to approve the appointing authority's request for an
open competitive examination. General Laws, c. 31, § 15, par. B(l) re-
quires such examinations to be held "with the approval of the director."
I am of the opinion that you have the authority to impose the require-
ments noted in the opinion request. Whether to impose such require-
ments in the first instance, and whether there is compliance with such
requirements once they are imposed are questions which you must de-
termine in the exercise of your discretion.
Finally, my opinion is sought whether a change in employment which
does not involve a change in title and which is within the same govern-
mental organization is a transfer within the meaning of G. L. c. 31, §
16A. You refer specifically to the geographical transfer of district
superintendents within DES. It is my opinion, for the reasons hereinaf-
P.D. 12 125
ter stated, that a change in employment which does not involve a change
in title and which is within the same governmental organization is a
transfer within the meaning of G. L. c. 31, § 16A and subject to all the
provisions of that section.
"Any person who has been permanently appointed in ac-
cordance with the civil service law and rules and who has
served a probationary period required by section twenty D
may, after application in writing to the director by an appoint-
ing authority and with the consent of the director, be transfer-
red to another similar position, provided the appointing au-
thority submits sound and sufficient reasons, in the opinion of
the director, to show that the transfer will be for the public
good and will not impose unreasonable hardship on the em-
ployee to be transferred. No position shall be considered
similar which is higher in grade or for which there are sub-
stantially dissimilar requirements for appointment."
*****
"Any person aggrieved by any such transfer may appeal to
the commission in accordance with the provisions of para-
graph (h) of section two.""
"Transfer"" is not defined in G. L. c. 31. When the applicable statute
does not define a word in question, the intention of the Legislature is
considered to be the natural import of the word according to the ordi-
nary and approved usage of the language when applied to the subject
matter of the act. Franki Foundation Co. v. State Tax Commission,
1972 Mass. Adv. Sh. 785. Common sense dictates that a "change"" in
employment within the same governmental organization is an ordinary
and approved use of the word "transfer.""
The context in which "transfer"" is used in G. L. c. 31, § 16A sup-
ports the position that the transfer of an employee within the same gov-
ernment organization was meant to come within that section. General
Laws, c. 31. § 16A requires that the transfer be to a similar position. A
similar position cannot be one "which is higher in grade or for which
there are substantially dissimilar requirements for appointment." A
transfer which does not even involve a change in title in the same gov-
ernment organization certainly meets those requirements.
The fact that G. L. c. 31, § 16A does not specify any other restric-
tions on the permissible method of transfer is significant. All the lan-
guage in a statute must be given meaning. Town Crier, Inc. v. Chief of
Police of Weston, 1972 Mass. Adv. Sh. 891, but omissions, intentional
or unintentional, cannot be added to a statute, Boylston Water Dist. v.
Tahanto Regional School Dist., 353 Mass. 81. Although "transfer"" is
not defined in G. L. c. 31 or the Civil Service Rules, the Legislature did
not intend that every conceivable type of transfer would be subject to G.
L. c. 31, § 16A. Similar positions in a higher grade or which have sub-
stantially dissimilar requirements for appointment are excluded. If the
Legislature had intended to exclude transfers within the same govern-
126 P.D. 12
mental organization, language to that effect would have been used in G.
L. c. 31, § 16A. This is an example of the statutory rule of construction
that expressio imius est excliisio alterius, or the express mention of one
matter in a statute excludes by implication other similar matters not
mentioned. Op. Atty. Gen., April 18, 1961, p. 119.
I have considered the provisions of G. L. c. 31, § 3, which concerns
the formulation and subject matter of rules, and have concluded that it
does not apply to the issue in question.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 37 May 7, 1973
Honorable Michael J. Lombardi
House of Representatives
State House
Boston, Massachusetts 02133
Dear Representative Lombardi:
As Chairman of the subcommittee determining the disposition and use
of the property, buildings and equipment of the Middlesex County
Training School, you have requested my opinion ''whether legislation
will be necessary in order that the Middlesex County Commissioners be
authorized to either sell or lease the property, buildings, and the equip-
ment of the Middlesex County Training School . . ."
General Laws, c. 77, § 1 provides, with exceptions not important
here, that
''The county commissioners of each county . . . shall main-
tain either separately or jointly with the commissioners of
other counties as hereinafter provided, in a suitable place,
remote from a penal institution, a school for the instruction
and training of children committed thereto as habitual truants,
absentees or school offenders ..."
General Laws, c. 34, § 14 provides, in pertinent part, that the County
Commissioners
"... shall have authority to represent their county, and to
have the care of its property and the management of its busi-
ness and affairs in cases where not otherwise expressly pro-
vided; to sell and convey any real estate of the county by
deed, sealed with the county seal, signed and acknowledged
by them, or to lease any real estate of the county . . ."
Chapter 35 of the General Laws provides for extensive state supervi-
sion of county finances.
Without examining the complete facts of each transaction, I am of
course unable to determine whether particular sales or leases of Mid-
dlesex Training School property by the Middlesex County Commission-
P.D. 12 127
ers will comply with the above-mentioned statutes. Moreover, the facts
of a particular transaction may suggest that additional rules of law are
also relevant.
With the above caveats in mind, it is my opinion, as a general proposi-
tion, that the statute conferring on the county commissioners the pru-
dential management of county property (G. L. c. 34. § 14) confers suf-
ficient authority to sell or lease the property, buildings and equipment of
the training school. However, the commissioners still have the statutory
responsibility to "maintain either separately or jointly with the commis-
sioners of other counties"" a training school.
Very truly yours.
ROBERT H. QUINN
Attorney General
Number 38 May 9. 1973
Miss Victoria Douglass
Secretary to the Commission
Division of Civil Service
294 Washington Street
Boston. Massachusetts
Dear Miss Douglass:
Your predecessor requested an opinion on behalf of the Civil Service
Commission whether the provisions of G. L. c. 31, § 2(b) authorizes or
requires the Civil Service Commission to adjust the grade of all applic-
ants who were improperly graded on the same question by the Director
of Civil Service when it adjusts the grade of a specific applicant who has
appealed to the Commission. For reasons hereinafter stated. I answer
the question in the negative.
General Laws. c. 31, § 12A sets forth the review powers of the Direc-
tor of Civil Service and provides in pertinent part:
"If the director finds that an error was made in failing to
grant credit for an applicant's answer to any question in the
written examination, he shall make an adjustment for such
error in the applicant's grade, and shall also adjust the grade
of any other applicant who did not receive credit for the same
answer because of such error."
General Laws, c. 31. § 2(b). in setting forth certain duties of the
Commission, provides in part:
"An appeal from a decision determining the results of an
examination shall be in writing . . . provided, 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,
and in each case of reversal of such decision or change in
marking the specific reason therefor shall be stated in the re-
cords of the proceedings of the commission."
128 P.D. 12
Noticeably absent in c. 31, § 2(b) is any requirement that the Commis-
sion "adjust the grade of any other applicant"" when it adjusts the mark
of a specific applicant as is required with respect to the director, by sec-
tion 12A. I am of the view that the General Court would have expressly
provided for uniform adjustment in section 2(b), as it did in section 12A,
if it desired the Commission to make corrections in erroneous grading
for all applicants. In addition, it is my opinion that the Commission has
no implied power to make uniform adjustments for all applicants.
As indicated in section 12 A, quoted supra, if the director detects an
error in an applicant's mark, he '\v//«// also adjust the grade of any other
applicant . . .*" "Shall,"" as generally used in statutes, is construed in an
imperative sense rather than a directory one. Thus, if the director dis-
covers an error in grading, he must adjust the grade of all applicants
similarly deprived. The absence of any such statutory direction in sec-
tion 2(b) with respect to appeals to the Commission, would appear to be
conclusive on the question.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 39 May 16, 1973
Honorable Gregory R. Anrig
Commissioner of Education
Chairman, Teachers' Retirement Board
182 Tremont Street
Boston, Massachusetts 021 1 1
Dear Dr. Anrig:
On behalf of the Teachers" Retirement Board, you have requested my
opinion whether the Board may authorize reimbursement to a city or
town for the payment of a pension under St. 1971. c. 944. § 1. Chapter
944 provides for the payment of pensions to teachers who meet certain
qualifications and who are not otherwise entitled to receive any pension
or annuity. Section 1 provides:
"A city or town, notwithstanding the provisions of any
general or special law, shall pay an annual pension of twelve
hundred dollars to any teacher who otherwise is not entitled
to receive an annuity, pension or retirement allowance, under
any general or special law on account of his own service, and
who upon the attainment of age sixty had completed not less
than twenty years of service, in the aggregate, as a teacher in
the public schools in Massachusetts; provided, that his first
employment as a teacher in said public schools began prior to
July the first, nineteen hundred and fourteen, and, provided
further, that at no time was he a member of the teachers" re-
tirement system.""
P.D. 12 129
Section 2 provides for reimbursement by the Commonwealth, upon
certification to the Teachers' Retirement Board of the amounts paid
pursuant to section 1.
Your opinion request indicates that the teacher involved (1) was born
on October 5. 1891; (2) first became employed in the public schools of
Massachusetts on September 1. 1913; (3) terminated service as a public
school teacher on September 1. 1944; (4) accordingly, had aggregate
service of thirty years and eight months; and (5) at the date of termina-
tion of service was fifty-two years old. Thus, the question to be resol-
ved, in the light of the statutory provision, is whether the statute re-
quires that the teacher have been in service upon attaining age sixty or
whether it only requires that twenty years of service, at a minimum,
have been completed prior to attaining age sixty.
The statutory provision is, admittedly, ambiguous. If it stated "and
who upon the attainment of age sixty and while still in service had com-
pleted not less than twenty years of service," it would be clear that a
teacher who retired prior to attaining age sixty was not entitled to a pen-
sion under its provisions. Resort to the legislative history of the act of-
fers no material assistance in the resolution of the ambiguity. Chapter
944 was enacted exactly as reported out by the House Committee on
Public Service, House No. 5620 of 1970. The Committee had considered
several bills relating to pensions for retired teachers, and the draft bill
which it reported was later refiled as House No. 1042 of 1971 and be-
came law in that year.
At the time of enactment of chapter 944, the class of persons who
would benefit thereby was already determined, as teachers receiving
pensions under the chapter must have commenced their service prior to
July 1, 1914. Even accepting age eighteen as the minimum age at which
some teachers might have commenced service (normal school training
being an acceptable prerequisite to a teaching career in 1914), all of the
teachers eligible for such pensions would have been 75 years of age or
older by the year 1971. Thus, they would all have passed the mandatory
age for retirement. In enacting chapter 944, the General Court was
necessarily determining eligibility for statutory benefits for persons
whose identities could be readily ascertained. Those persons either ful-
filled the statutory conditions or they did not, and no person could
satisfy the conditions by reason of future events.
These considerations lead me to the conclusion that a more liberal in-
terpretation should be accorded the statute than might be the case if the
benefits thereby conferred were to be available for unknown persons by
reason of the performance of service subsequent to the effective date of
the statute. The statute obviously gave recognition to substantial serv-
ices rendered by public school teachers who did not or could not, be-
cause of the time of their service, join the teachers' retirement system.
It is my opinion, therefore, that the statute only requires that at least
twenty years of service have been rendered prior to a teacher's sixtieth
birthday and does not require that the teacher have been in service on
that birthday.
130 P.D. 12
Since, in the case you present, the teacher rendered in excess of thirty
years' service prior to his or her sixtieth birthday, he or she, as the case
may be, is entitled to the pension provided by St. 1971, c. 944.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 40 May 16, 1973
Honorable John F. Kehoe, Jr.
Commissioner of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Dear Commissioner Kehoe:
You have requested my opinion whether G. L. c. 146, § 7 exempts
steam boilers on motor vehicles from the yearly inspections required by
section 6 of the same chapter. For the reasons hereinafter stated, I am
of the opinion that boilers on motor vehicles are exempt from the gen-
eral inspections of steam boilers authorized by G. L. c. 146, § 6.
General Laws, c. 146, § 6 provides as follows:
"All steam boilers and their appurtenances except those
specified in the following section shall be thoroughly in-
spected externally and internally at least once a year. Upon
written application made to it by the owner or user of a pres-
sure vessel or boiler, the board may, when the public interest
and convenience require, extend the time for the making of
such inspection for a period not to exceed six months as the
board may determine."
Section 7 of c. 146 creates certain exemptions from this general in-
spection requirement:
"The preceding section shall not apply to boilers of rail-
road locomotives, motor vehicles or steam fire engines
brought into the commonwealth for temporary use in times of
emergency, nor to boilers used in private residences, nor to
those used for heating purposes which carry pressures not
exceeding fifteen pounds to the square inch and have less
than four square feet of grate surface, nor to boilers of not
more than three horse power. The said section shall not apply
to boilers under the jurisdiction of the United States nor to
those used exclusively for horticultural or agricultural pur-
poses." (Emphasis supplied.)
Section 7 of c. 146 expressly states that "boilers of . . . motor vehi-
cles" are not subject to G. L. c. 146, § 6. This is consistent with provi-
sions in other sections of the chapter which exempt motor vehicles from
certain inspection requirements. G. L. c. 146, § 34 (compressed air
tanks attached to motor vehicles); G. L. c. 146, § 45A (refrigeration or
P.D. 12 131
air conditioning systems in motor vehicles). Moreover, inspections ap-
pear to apply only to those boilers which are required to be operated by
licensed persons. In this regard, it is significant that a boiler must be in
the charge of a licensed person except inter alia "boilers . . . upon . . .
motor vehicles . . ." G. L. c. 146, § 46. Finally, the exemption of boil-
ers on motor vehicles from the requirements of G. L. c. 146, § 6 is con-
sistent with a legislative intent that periodic inspections of motor vehi-
cles be governed by G. L. c. 90, § 7A.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 41 May 18, 1973
Honorable Bruce Campbell
Commissioner of Public Works
100 Nashua Street
Boston, Massachusetts 02114
Dear Commissioner:
You have requested my opinion regarding the disposal of vehicles
which were towed to and stored upon land of the Commonwealth by
Central Tow Co., Inc. (Central Tow), the then lessee of the land. Speci-
fically, you ask:
"1. May the Department conduct an auction sale of the vehicles
and send the net proceeds to the Central Tow Co., Inc., be-
cause the company has a lien?
"2. May the Department attempt to find the owners by advertising
in the newspapers and legally return the vehicles to the own-
ers?
"3. If the Department cannot find the owners or may not legally
return the vehicles to the owners, may the Department dispose
of the vehicles in any other manner?"
You state that Central Tow towed the vehicles in question pursuant to
calls from the Boston Police, Metropolitan District Police and the Re-
gistry of Motor Vehicles. You further relate that the vehicles were left
unattended on the leased premises by Central Tow; that vandals strip-
ped the vehicles: and that there now exists an unsightly condition and
possible fire hazard on the leased premises.
The loci in question are beneath the viaduct of the J. F. Fitzgerald
Expressway along Albany Street, Boston and were leased by the Com-
monwealth acting through the Department of Public Works (the De-
partment) to Central Tow. The Department terminated the leases on
November 9, 1972.
You state that automobiles "such as illegally parked vehicles, vehicles
in accidents, etc." were among the cars towed. Although initially these
132 P.D. 12
vehicles could not be deemed "abandoned," see e.g. G. L. c. 40, §
22D; G. L. c. 85, § 2C, it may well be, as discussed, infra, that they
now fall within that classification. G. L. c. 90, §§ 22B, 22C. The vehi-
cles have remained on the premises in question at least since the termi-
nation of the leases with Central Tow, a period of approximately six
months. Apparently, no inquiries have been received by the Department
or city officials as to their whereabouts.
The owners of the vehicles in question are responsible for their re-
moval and for costs incidental thereto. An owner may be an individual,
or an insurance company that has paid a total loss on any automobile
involved. If the Department knows the identity of such an owner, the
Department should instruct said owner to remove his vehicle forthwith.
If an owner fails to cooperate in this regard, the Department should seek
a complaint under G. L. c. 90, § 22B. The Department may endeavor to
locate the identities of vehicle owners through public newspaper notice,
see e.g. G. L. c. 92, § 91; however, since you state that the vehicles are
in "deplorable" condition, it is unlikely such owners will respond.
I would advise you that prior to or contemporaneously with the giving
of public notice as hereinbefore described, the Department should
commence following the procedures set forth in G. L. c. 90, § 22C. That
statute provides as follows:
"If the superintendent of streets or other officer having
charge of the public ways in a city or town reasonably deems
that any motor vehicle apparently abandoned by its owner
and standing for more than seventy-two hours upon a public
or private way therein or on any property therein without the
permission of the owner or lessee of said property, or if a
captain or lieutenant of the metropolitan district commission
police force or a captain or lieutenant of the state police
reasonably deems that any motor vehicle apparently aban-
doned by its owner and standing for more than seventy-two
hours upon any property under their respective jurisdictions,
is worth less than the cost of removal and storage and ex-
penses incident to disposition pursuant to sections seven to
eleven, inclusive, of chapter one hundred and thirty-five, sec-
tions eighty-nine to ninety-four, inclusive, of chapter ninety-
two, or sections six A to six D, inclusive, of chapter one
hundred and forty-seven, he may, without incurring liability
on his part or on the part of the city, town or the common-
wealth, take possession of such motor vehicle and dispose
thereof as refuse. Any such superintendent or other officer of
a city or town may, likewise, without liability, take posses-
sion of any such motor vehicle deemed worth more than the
cost and expense as aforesaid, and deliver the same to the of-
ficer or member of the police department of the city or town,
designated by the rules of said department as custodian of
lost property, wherein said motor vehicle was found, who
may dispose thereof pursuant to said sections seven to ele-
P.D. 12 133
ven. inclusive. Any such officer of said commission or of said
state police may, likewise, without liability, take possession
of any such motor vehicle deemed worth more than the cost
and expenses as aforesaid, and dispose thereof pursuant to
said sections eighty-nine to ninety-four, inclusive or said sec-
tions six A to six D, inclusive."
A determination by the responsible city official or law enforcement of-
ficer that the vehicles in question are ''abandoned," would obviate the
need for the public notice discussed, supra. If the responsible official or
officer determines that the value of any vehicle "is worth less than the
cost of removal and storage and expenses incident to disposition," he
has authority "to take possession of such motor vehicle and dispose
thereof as refuse." There is no reason why the Department cannot
cooperate with any such disposal efforts.
You have not provided me with information sufficient to answer your
first question, and I respectfully decline to answer same. My answers as
to your second and third questions are as set forth in this opinion. I in-
timate no opinion as to possible action for breach of lease covenants that
either party to the leases in question may have against the other.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 42 May 21, 1973
Honorable Bruce Campbell
Commissioner of Public Works
100 Nashua Street
Boston, Massachusetts 02114
Dear Commissioner Campbell:
You have requested my opinion with respect to several questions aris-
ing from the enactment of Chapter 765 of the Acts of 1972, "An Act
Relative to the Accelerated Highway Program." The Act directs the
Department of Public Works to expend up to "five hundred and nine
million, nine hundred and fifty thousand dollars for the laying out, con-
struction, reconstruction, resurfacing, relocation or improvement of
highways, parkways, bridges, grade crossing eliminations and alterations
of crossings at other than grade, parking facilities, scenic easements, and
for construction of needed improvements on other routes not designated
as state highways . . ."
You ask four questions concerning section one of,the Act, which pro-
vides in pertinent part as follows:
"The state department of public works ... is hereby au-
thorized and directed . . . notwithstanding any law to the con-
trary to relocate persons residing in or carrying on business
in, or to replace such dwellings or other structures, and to
134 P.D. 12
pay relocation benefits in amounts equal to levels of benefits
provided for by the Uniform Relocation Assistance and Real
Property Acquisition Policies of 1970, Public Law 91-646, as
amended."
Specifically, you ask:
"1. Because of the phrase 'notwithstanding any law to the
contrary' does the provision relating to 'relocation benefits'
expand the authorization given to the Department under the
provisions of Chapter 81, Section 7J of the General Laws so
that the expenditure of funds can be applied to all projects in-
cluding those projects where there are no Federal reim-
bursements?
"2. Do the words 'or to replace such dwellings or other
structures' permit the Department to take other dwellings
outside the project area by eminent domain in order to have
replacement dwellings or other structures available for those
being displaced by the project?
"3. Do the words 'or to replace such dwellings or other
structures' permit the Department to take other vacant land
outside the project area by eminent domain in order to con-
struct replacement dwellings or other structures for those
being displaced by the project?
"4. If the answers to questions 2 or 3 are in the affirmative,
do the words 'or to replace such dwelling or other structures'
permit the Department to transfer the title or other interest to
dwellings or land taken outside the project area to those dis-
placed by the project?"
L Your first question concerns an interpretation of the words — "and
notwithstanding any law to the contrary ... to pay relocation benefits in
amounts equal to levels of benefits provided for by the Uniform Reloca-
tion Assistance and Real Property Acquisition Policies of 1970
[hereinafter referred to as the Federal Relocation Assistance Act], Pub-
lic Law 91-646, as amended." In substance you ask whether this re-
quires your department to pay relocation benefits according to the levels
prescribed by the Federal Relocation Assistance Act to persons dis-
placed by projects that do not qualify for federal assistance.
It is a fundamental principle of legislative interpretation that an
enactment must be construed according to the common and approved
usage of the language. Board of Assessors of Amherst v. State Tax
Commission, 357 Mass. 505, 507. Furthermore, when the words used in
a legislative enactment are clear and explicit — where they convey a
thought plainly and adequately — they are to be taken as expressing that
thought. Sampson v. Treasurer and Receiver General, 282 Mass. 119,
122. The language used by the Legislature in Section 1 of Chapter 765
clearly manifests an intent to provide the same relocation benefits for all
persons displaced by highway projects regardless of whether these pro-
jects receive federal assistance. It must be presumed that the Legislature
P.D. 12 135
was aware of the provisions contained in G. L. c. 81, § 7J, when it
enacted Chapter 765. Selectmen of Topsfield v. Stale Racing
Commission, 324 Mass. 309, 313. The words "notwithstanding any law
to the contrary," indicate the Legislature intended that the provisions
contained in G. L. c. 81, § 7J should not apply to persons or businesses
displaced by projects authorized by Chapter 765. Consequently, it is my
opinion that all persons displaced by projects authorized by Chapter 765
of the Acts of 1972 are to receive relocation benefits according to levels
prescribed by the Federal Relocation Assistance Act.
I note that the Federal Relocation Assistance Act is referred to "as
amended." It is not clear whether this includes amendments subsequent
to the effective date of Chapter 765. The former interpretation would
render this provision unconstitutional because the Legislature would be
attempting to make operative as a statute a rule or standard to be
adopted by Congress in the future. Opinion of the Justices, 239 Mass.
608, 611-12. Such would be an unlawful delegation of the Legislature's
function to enact laws. /hid. The latter interpretation is permissible be-
cause the Legislature would be adopting a rule or standard already
enacted by Congress. Ihid. As was stated in Colella v. State Racing
Commission, 1971 Mass. Adv. Sh. 1317, 1322, a law should not be de-
clared unconstitutional "unless it is impossible by any reasonable con-
struction to interpret its provisions in harmony with the Constitution."
Since the latter interpretation is reasonable and in harmony with the
Constitution, it is my opinion that persons who are displaced by high-
way projects which do not qualify for federal assistance are to receive
relocation benefits according to the levels prescribed by the Federal Re-
location Assistance Act as it was amended on the effective date of
Chapter 765.
IL Your second and third questions are answered by referring to the
second paragraph of Section 1 of Chapter 765. This paragraph incorpo-
rates by reference the first paragraph of Section 6 contained in Chapter
718 of the Acts of 1956, which provides in pertinent part as follows:
"The department and the commission may, on behalf of
the commonwealth, take by eminent domain under chapter
seventy-nine of the General Laws, or acquire by purchase or
otherwise, such public or private lands, including buildings
thereon, cemeteries, public parks or reservations, or parts
thereof or rights therein, including buildings thereon, and
public ways as it may deem necessary for carrying out the
provisions of this act, including such land or rights in land as
may be necessary for the construction of any necessary
drainage outlets ..."
It is my opinion that the above provision incorporated in Chapter 765
clearly authorizes your department to take by eminent domain buildings
and vacant lots outside the project area for the purpose of replacing
dwellings or other structures.
136 PD. 12
III. Your fourth question concerns the scope of your authority to
transfer the title of property taken outside the project area. Your de-
partment has been granted broad authority to dispose of land no longer
necessary for highway purposes. G. L. c. 81, § 7E, as amended by St.
1971, c. 606. However, the land to which you refer is not being taken for
highway purposes. It is being taken for the purpose of relocating families
and businesses displaced by a highway project.
Notwithstanding the fact that land is to be taken for purposes which
may not be strictly construed as "highway purposes," it is my view that
section one of chapter 765 confers authority on your Department which
is broad enough to encompass the power to transfer to third persons the
title of property taken outside the project area. Section One uses the
words "or to replace such dwellings or other structures," language
which, in my opinion, encompasses all that is reasonably and necessarily
incident to the replacement process, e.g., acquisition, holding, disposal,
etc. Certainly, a necessary step in the process of providing comparable
replacement sale housing is transfer of the fee interest to the relocatee. I
also note that there presently exists no statutory authorization for the
Department to act as a property manager if it were unable to transfer
interests acquired, a fact which lends support to the conclusion which I
reach.
Consequently, it is my opinion that you are authorized to transfer the
title of land taken outside a project area to persons displaced by a high-
way project.
In conclusion, it must be emphasized that the power of eminent do-
main conferred on the department by chapter 765 is an awesome one,
and that power is subject to a finding of reasonable necessity and the
exercise of prudent judgment and sound discretion. While I do not in-
tend this opinion to cover all possible situations with which your de-
partment may be confronted, I note that the department should, where-
ever and whenever possible, utilize property already publicly owned or
exercise the power of eminent domain over dwellings and/or property
similar, if possible, to that formerly occupied by the relocatees in ques-
tion.
Very truly yours,
ROBERT H. QUINN
Attorney General
P.D. 12 137
Number 43 May 24, 1973
Honorable Edward S. Zelazo
Chairman, Division of Industrial
Accidents
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Mr. Zelazo:
You have requested my opinion as to the type of bond which the
Massachusetts Bay Transportation Authority is required to file under
the provisions of G. L. c. 152, § 25A(2) (b). That section requires that
an employer electing to provide workmen's compensation as a self-
insurer may do so "[b]y furnishing annually a bond running to the com-
monwealth, with some surety company authorized to transact business
in the commonwealth as surety, in such form as may be approved by the
[industrial accidents] division and in such amount not less than twenty
thousand dollars as may be required by the division . . ." The subject
matter of your request has been dealt with in previous correspondence
between the Director of Self-Insurance of your Division and the Chief
of my Administrative Division, to which I make reference.
It is my opinion that the requirements of G. L. c. 152, § 25A(2) (b)
must be read in pari materia with G. L. c. 161 A, § 13, which guarantees
that the financial obligations of the Massachusetts Bay Transportation
Authority will be met by the Commonwealth in those instances where
the Authority has insufficient funds to meet expenses, and § 18, which
exempts the Authority from taxes, excises, license fees and the like.
Read together, those statutes evidence a legislative intent to exempt the
Authority from the requirement that it obtain a surety on its bond.
Accordingly, it is my opinion that the Authority need only file a bond
which makes reference to the Commonwealth's obligations under G. L.
c. 161A, § 13, and no surety is required.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 44 May 24, 1973
Mr. Gordon A. McGill, Secretary
Emergency Finance Board
State House
Boston, Massachusetts 02133
Dear Mr. McGill:
You have requested my opinion whether the Emergency Finance
Board may approve a borrowing by the City of Brockton in the amount
of One Million Five Hundred Thousand Dollars, for an approved school
38 P.D. 12
project, where the amount of the borrowing includes One Hundred
Thirty Thousand Dollars for new equipment and furnishings. The ap-
proval of the Emergency Finance Board is required by St. 1948, c. 645,
§ 8. The answer to your question depends upon the construction of the
definition of "approved school project" as that term is used in the stat-
utes relating to construction of school buildings.
The term "approved school project" was first defined in St. 1948, c.
645, § 5, but no mention was made in the original definition of equipment
or furnishings. The definition was amended by St. 1950, c. 490, so that it
read as follows:
" 'Approved school project' shall mean any project for the
construction or enlargement of a regional or consolidated
school or of any public schoolhouse in any city or town, and
shall include the original equipment and furnishings, whether
movable or built in, to complete said project, the contract or
contracts for which shall have been awarded on or after
January first, nineteen hundred and forty-six, by any city,
town or regional school building committee, which has been
approved by the commission for the purposes of sections
seven through nine, inclusive." (Emphasis supplied.)
The definition was again amended in 1968 by St. 1968, c. 754, § 1, to
add the following sentence:
"Approved school project shall also mean any project for
the reconstruction, remodeling, rehabilitation and moderniza-
tion of any schoolhouse in lieu of which, proper utilization of
the present educational facilities would require complete
structure replacement, the contract or contracts for which
shall have been awarded on or after January first, nineteen
hundred and sixty-eight, by any city, town or regional school
building committee, which has been approved by the com-
mission for the purposes of section seven through nine, inclu-
sive, provided that the amount of money provided from the
commonwealth for such reconstruction, remodeling, rehabili-
tation and modernization shall be limited to one third of the
expenditure for new construction for the previous year."
In the light of the amended definition of "approved school project"
the question for resolution is whether the Board may approve a borrow-
ing which includes an amount for new equipment and furnishings where
such equipment and furnishings are not the original equipment and fur-
nishings. I answer the question in the affirmative.
I am of the opinion that the statute should be liberally construed, in
view of its purpose which is to fecilitate the reconstruction, remodeling,
rehabilitation and modernization of presently existing school buildings.
Clearly, "rehabilitation" and "modernization" of schools encompasses
replacement of equipment and furnishings, as that step can be as effec-
tive as changes to the fabric of a building in promoting the statutory ob-
jective. Accordingly, 1 conclude that the Emergency Finance Board
P.D. 12 139
may grant approval for the City of Brockton to borrow an amount of
money which includes a sum allocated for replacement of equipment and
furnishings.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 45 June 6, 1973
Honorable David M. Bartley
Speaker of the House of
Representatives
State House
Boston, Massachusetts
Dear Speaker Bartley:
The House of Representatives, by H. 6085, has addressed to me sev-
eral questions regarding Article 97 of the Articles of Amendment to the
Constitution of Massachusetts. Establishing the right to a clean envi-
ronment for the citizens of Massachusetts, Article 97 was submitted to
the voters on the November 1972 ballot and was approved. The ques-
tions of the House go to the provision in the Article requiring that acts
concerning the disposition of, or certain changes in, the use of certain
public lands be approved by a two-thirds roll-call vote of each branch of
the General Court.
Specifically, your questions are as follows:
1. Do the provisions of the last paragraph of Article
XCVH of the Articles of the Amendments to the Constitu-
tion requiring a two thirds vote by each branch of the general
court, before a change can be made in the use or disposition
of land and easements acquired for a purpose described in
said Article, apply to all land and easements held for such a
purpose regardless of the date of acquisition, or in the alter-
native, do they apply only to land and easements acquired for
such purposes after the effective date of said Article of
Amendments?
2. Does the disposition or change of use of land held for
park purposes require a two thirds vote, to be taken by the
yeas and nays of each branch of the general court, as pro-
vided in Article XCVH of the Articles of the Amendments to
the Constitution, or would a majority vote of each branch be
sufficient for approval?
3. Do the words "natural resources" as used in the first
paragraph of Article XCVH of the Articles of the Amend-
ments to the Constitution include ocean, shellfish and inland
fisheries; wild birds, including song and insectivorous birds;
wild mammals and game; sea and fresh water fish of every
140 P.D. 12
description; forests and all uncultivated flora, together with
public shade and ornamental trees and shrubs; land, soil and
soil resources, lakes, ponds, streams, coastal, underground
and surface waters; minerals and natural deposits, as for-
merly set out in the definition of the words "natural re-
sources" in paragraph two of section one of chapter twenty-
one of the General Laws?
4. Do the provisions of the fourth paragraph of Article
XCVII of the Articles of the Amendments to the Constitu-
tion apply to any or all of the following means of disposition
or change in use of land held for a public purpose: con-
veyance of land; long-term lease for inconsistent use; short-
term lease, two years or less, for an inconsistent use; the
granting or giving of an easement for an inconsistent use; or
any agency action with regard to land under its control if an
inconsistent use?
The proposed amendment to the Constitution was agreed to by the
majority of the members of the Senate and the House of Representa-
tives, in joint session, on August 5, 1969 and again on May 12, 1971, and
became part of the Constitution by approval by the voters at the state
election next following, on November 7, 1972. The full text of Article 97
is as follows:
ART. XCVII. Article XLIX of the Amendments to the
Constitution is hereby annulled and the following is adopted
in place thereof: — The people shall have the right to clean
air and water, freedom from excessive and unnecessary
noise, and the natural, scenic, historic, and esthetic qualities
of their environment; and the protection of the people in their
right to the conservation, development and utilization of the
agricultural, mineral, forest, water, air and other natural re-
sources is hereby declared to be a public purpose.
The general court shall have the power to enact legislation
necessary or expedient to protect such rights.
In the furtherance of the foregoing powers, the general
court shall have the power to provide for the taking, upon
payment of just compensation therefor, or for the acquisition
by purchase or otherwise, of lands and easements or such
other interests therein as may be deemed necessary to ac-
complish these purposes.
Lands and easements taken or acquired for such purposes
shall not be used for other purposes or otherwise disposed of
except by laws enacted by a two thirds vote, taken by yeas
and nays, of each branch of the general court.
1. The first question of the House of Representatives asks, in effect,
whether the two-thirds roll-call vote requirement is retroactive, to be
applied to lands and easements acquired prior to the effective date of
Article 97, November 7, 1972. For the reasons below, I answer in the
affirmative.
P.D. 12 141
The General Court did not propose this Amendment nor was it ap-
proved by the voting public without a sense of history nor void of a pur-
pose worthy of a constitutional amendment. Examination of our con-
stitutional history tlrmly establishes that the two-thirds roll-call vote re-
quirement applies to public lands wherever taken or acquired.
Specifically. Article 97 annuls Article 49. in effect since November 5,
1918. Under that Article the General Court was empowered to provide
for the taking or acquisition of lands, easements and interests therein
"for the purpose of securing and promoting the proper conservation,
development, utilization and control" [of] "agricultural, mineral, forest,
water and other natural resources of the commonwealth." Although in-
clusion of the word "air" in this catalogue as it appears in Article 97
may make this new article slightly broader than the supplanted Article
49 as to purposes for which the General Court may provide for the tak-
ing or acquisition of land, it is clear that land taken or acquired under the
earlier Article over nearly fifty years is now to be subjected to the two-
thirds vote requirement for changes in use or other dispositions. Indeed
all land whenever taken or acquired is now subject to the new voting
requirement. The original draftsmen of our Constitution prudently in-
cluded in Article 10 of the Declaration of Rights a broad constitutional
basis for the taking of private land to be applied to public uses, without
limitation on what are "public uses." By way of acts of the Legislature
as well as through generous gifts of many of our citizens, the Common-
wealth and our cities and towns have acquired parkland and reservations
of which we can be justly proud. To claim that new Article 97 does not
give the same care and protection for all these existing public lands. as
for lands acquired by the foresight of future legislators or the generosity
of future citizens would ignore public purposes deemed important in our
laws since the beginning of our Commonwealth.
Moreover, if this amendment were only prospective in effect, it would
be virtually meaningless. In our Commonwealth, with a life commencing
in the early 1600s and already cramped for land, it is most unlikely that
the General Court and the voters would choose to protect only those
acres hereafter added to the many thousands already held for public
purposes. The comment of our Supreme Judicial Court concerning the
earlier Article 49 is here applicable: "It must be presumed that the con-
vention proposed and the people approved and ratified the Forty-ninth
Amendment with reference to the practical affairs of mankind and not as
a mere theoretical announcement." Opinion of the Justices, 237 Mass.
598, 608.
2. In its second question the House asks, in effect, whether the two-
thirds roll-call vote requirement applies to land held for park purposes,
as the term "park" is generally understood. My answer is in the affirma-
tive, for the reasons below.
One major purpose of Article 97 is to secure that the people shall have
"the right to clean air and water, freedom from excessive and unneces-
sary noise, and the natural, scenic, historic, and esthetic qualities of
142 P.D. 12
their environment." The fulfillment of these rights is uniquely carried
out by parkland acquisition. As the Supreme Judicial Court has de-
clared,
"The healthful and civilizing influence of parks in or near
congested areas of population is of more than local interest
and becomes a concern of the State under modern conditions.
It relates not only to the public health in its narrow sense, but
to broader considerations of exercise, refreshment, and en-
joyment." Higginson v. Treasurer and School House Com-
missioners of Boston, 212 Mass. 583, 590; see also Higginson
v. Inhabitants of Nahant, 11 Allen 530, 536.
A second major purpose of Article 97 is ''the protection of the people
in their right to the conservation, development and utilization of the ag-
ricultural, mineral, forest, water, air and other natural resources." Park-
land protection can afford not only the conservation of forests, water
and air but also a means of utilizing these resources in harmony with
their conservation. Parkland can undeniably be said to be acquired for
the purposes in Article 97 and is thus subject to the two-thirds roll-call
requirement.
This question as to parks raises a further practical matter in regard to
implementing Article 97 which warrants further discussion. The reasons
the Legislature employs to explain its actions can be of countless levels
of specificity or generality and land might conceivably be acquired for
general recreation purposes or for very explicit uses such as the playing
of baseball, the flying of kites, for evening strolls or for Sunday after-
noon concerts. Undoubtedly, to the average man, such land would serve
as a park but at even a more legalistic level it clearly can also be ob-
served that such land was acquired, in the language of Article 97, be-
cause it was a "resource" which could best be "utilized" and "de-
veloped" by being "conserved" within a park. But it is not surprising
that most land taken or acquired for public use is acquired under the
specific terms of statutes which may not match verbatim the more gen-
eral terms found in Article 10 of the Declaration of Rights of the Con-
stitution or in Articles 39. 43, 49, 51 and 97 of the Amendments. Land
originally acquired for limited or specified public purposes is thus not to
be excluded from the operation of the two-thirds roll-call vote require-
ment for lack of express invocation of the more general purposes of Ar-
ticle 97. Rather the scope of the Amendment is to be very broadly con-
strued, not only because of the greater broadness in "public purpose,"
changed from "public uses" appearing in Article 49, but also because
Article 97 establishes that the protection to be afforded by the Amend-
ment is not only of public uses but of certain express rights of the peo-
ple.
Thus, all land, easements and interests therein are covered by Article
97 if taken or acquired for "the protection of the people in their right to
the conservation, development and utilization of the agricultural, min-
eral, forest, water, air and other natural resources" as these terms are
P.D. 12 143
broadly construed. While small greens remaining as the result of con-
structing public highways may be excluded, it is suggested that parks,
monuments, reservations, athletic fields, concert areas and playgrounds
clearly qualify. Given the spirit of the Amendment and the duty of the
General Court, it would seem prudent to classify lands and easements
taken or acquired for specific purposes not found verbatim in Article 97
as nevertheless subject to Article 97 if reasonable doubt exists concern-
ing their actual status.
3. The third question of the House asks, in effect, how the words
"natural resources,"" as appearing in Article 97, are to be defined.
Several statutes offer assistance to the General Court, all without
limiting what are "natural resources."" General Laws c. 21, § I defines
"natural resources,"" for the purposes of Department of Natural Re-
sources jurisdiction, as including
"ocean, shellfish and inland fisheries; wild birds, including
song and insectivorous birds, wild mammals and game; sea
and fresh water fish of every description; forests and all un-
cultivated flora, together with public shade and ornamental
trees and shrubs; land, soil and soil resources, lakes, ponds,
streams, coastal, underground and surface waters; minerals
and natural deposits.""
In addition, G. L. c. 12, § IID. establishing a Division of Environ-
mental Protection in my Department, uses the words "natural re-
sources"" in such a way as to include air, water, "rivers, streams, flood
plains, lakes, ponds or other surface or subsurface water resources"" and
"seashores, dunes, marine resources, wetlands, open spaces, natural
areas, parks or historic districts or sites."" General Laws c. 214. § lOA,
the so-called citizen-suit statute, contains a recitation substantially iden-
tical. To these lists Article 97 would add only "agricultural"" resources.
It is safe to say, as a consequence, that the term "natural resources"'
should be taken to signify at least these catalogued items, as a minimum.
Public lands taken or acquired to conserve, develop or utilize any of
these resources are thus subject to Article 97.
It is apparent that the General Court has never sought to apply any
limitation to the term "natural resources"" but instead has viewed the
term as an evolving one which should be expanded according to the
needs of the time and the term was originally inserted in our Constitu-
tion for just that reason. See Debate of the Constitutional Convention -
I9I7-I9I8, p. 595. The resources enumerated above should, therefore,
be regarded as examples of and not delimiting what are "natural re-
sources.""
4. The fourth question of the House requires a determination of the
scope of activities which is intended by the words: "shall not be used for
other purposes or otherwise disposed of.""
The term "disposed"" has never developed a precise legal meaning.
As the Supreme Court has noted. "The word is noinen ^eneralissimiou,
and standing by itself, without qualification, has no technical significa-
144 P.D. 12
tion/" Phelps v. Harris, 101 U.S. 370, 381 (1880). The Supreme Court
has indicated however, that ''disposition'' may include a lease. U.S. v.
Gratiot, 39 U.S. 526 (1840). Other cases on unrelated subjects suggest
that in Massachusetts the word "dispose" can include all forms of trans-
fer no matter how complete or incomplete. Rogers v. Goodwin, 2 Mass.
475; Woodbridge v. Jones, 183 Mass. 549; Lord v. Smith, 293 Mass.
555.
In this absence of precise legal meaning, Webster's Third New Inter-
national Dictionary is helpful. "Dispose of is defined as "to transfer
into new hands or to the control of someone else." A change in physical
or legal control would thus prove to be controlling.
I therefore conclude that the "dispositions" for which a two-thirds
roll-call vote of each branch of the General Court is required include;
transfers of legal or physical control between agencies of government,
between political subdivisions, and between levels of government, of
lands, easements and interests therein originally taken or acquired for
the purposes stated in Article 97, and transfers from public ownership to
private. Outright conveyance, takings by eminent domain, long-term and
short-term leases of whatever length, the granting or taking of easements
and all means of transfer or change of legal or physical control are
thereby covered, without limitation and without regard to whether the
transfer be for the same or different uses or consistent or inconsistent
purposes.
This interpretation affords a more objective test, and is more easily
applied, than "used for other purposes." Under Article 97 that standard
must be applied by the Legislature, however, in circumstances which
cannot be characterized as a disposition — that is, when a transfer or
change in physical or legal control does not occur. A change of use
within a governmental agency or within a political subdivision would
serve as an apt example. Within any agency or political subdivision any
land, easement or interest therein, if originally taken or acquired for the
purposes stated in Article 97, may not be "used for other purposes"
without the requisite two-thirds roll-call vote of each branch of the Gen-
eral Court.
It may be helpful to note how Article 97 is to be read with the so-
called doctrine of "prior public use," application of which also turns on
changes in use. That doctrine holds that
. "public lands devoted to one public use cannot be diverted to another
inconsistent public use without plain and explicit legislation au-
thorizing the diversion." Rohbins v. Department of Public Works,
355 Mass. 328, 330 and cases there cited.
The doctrine of "prior public use" is derived from many early cases
which establish its applicability to transfers between corporations
granted limited powers of the Commonwealth, such as eminent domain
and authority over water and railroad easements. E.g., Old Colony Rail-
road Company v. Framingham Water Company, 153 Mass. 561; Boston
Water Power Company v. Boston and Worcester Railroad Corporation,
P.D. 12 145
23 Pick. 360; Boston and Maine Railroad v. Lowell and Lawrence Rail-
road Company. 124 Mass. 368; Eastern Railroad Company v. Boston
and Maine Railroad. Ill Mass. 125. and H onsatonic Railroad
Company v. Lee and Hudson Railroad Company. 118 Mass. 391. The
doctrine was also applied at an early date to transfers between such cor-
porations and municipalities and counties. E.g., Boston and Albany
Railroad Company v. City Council of Cambridge, 166 Mass. 224 (emi-
nent domain taking of railroad land); Eldredge v. County Commission-
ers of Norfolk, 185 Mass. 186 (eminent domain taking of railroad ease-
ment); West Boston Bridge v. County Commissioners of Middlesex. 10
Pick. 270 (eminent domain taking of turnpike land), and Inhabitants of
Springfield v. Connecticut River Railroad Co.. 4 Cush. 63 (eminent do-
main taking of a public way).
The doctrine of "prior public use" has in more modern times been
applied to the following transfers between governmental agencies or
political subdivisions: a) a transfer between state agencies, Robhins v.
Department of Public Works, 355 Mass. 328 (eminent domain taking of
Metropolitan District Commission wetlands), b) transfers between a
state agency and a special state authority. Commonwealth v.
Massachusetts Turnpike Authority, 346 Mass. 250 (eminent domain tak-
ing of MDC land) and see Loschi v. Massachusetts Port Authority, 354
Mass. 53 (eminent domain taking of parkland), c) a transfer between a
special state commission and special state authority, Gould v. Greylock
Reservation Commission, 350 Mass. 410 (leas^ of portions of Mount
Greylock), d) transfers between municipalities. City of Boston v.
Inhabitants of Brookline, 156 Mass. 172 (erninent domain taking of a
water easement) and Inhabitants ofQuincy v. City of Boston, 148 Mass.
389 (eminent domain taking of a public way), e) transfers between state
agencies and municipalities. Town of Brookline v. Metropolitan District
Commission, 357 Mass. 435 (eminent domain taking of parkland) and
City of Boston v. Massachusetts Port Authority, 356 Mass. 741 (eminent
domain taking of a park), f) a transfer between a special state authority
and a municipality, Appleton v. Massachusetts Parking Authority, 340
Mass. 303 (1960) (eminent domain, Boston Common), g) a transfer bet-
ween a state agency and a county. Abbot v. Commissioners of the
County of Dukes County, 357 Mass. 784 (Department of Natural Re-
sources grant of avigation easement), and h) transfers between counties
and municipalities. Town of Needham v. County Commissioners of
Norfolk, 324 Mass. 293 (eminent domain taking of common and park
lands) and Inhabitants of Easthampton v. County Commissioners of
Hampshire, 154 Mass. 424 (eminent domain taking of school lot).
The doctrine has also been applied to the following changes of use of
public lands within governmental agencies or within political subdivi-
sions: a) intra-agency uses, Sacco v. Department of Public Works. 352
Mass. 670 (filling a portion of a Great Pond), b) intramunicipality uses,
Higginson v. Treasurer and School House Commissioners of Boston,
212 Mass. 583 (erecting a building on a public park), and see Kean v.
Stetson, 5 Pick. 492 (road built adjoining a river), and c) intracounty
146 P.D. 12
uses, Bauer v. Mitchell, 247 Mass. 522 (discharging sewage upon school
land). The doctrine may also possibly reach de facto changes in use,
e.g., Pilgrim Real Estate Inc. v. Superintendent of Police of Boston,
330 Mass. 250 (parking of cars on park area) and may be available to
protect reservation land held by charitable corporations, e.g.. Trustees
of Reservations v. Town of Stockhridge, 348 Mass. 511 (eminent do-
main).
In addition to these extensions of the doctrine, special statutory pro-
tections, codifying the doctrine of "prior public use," are afforded local
parkland and commons by G. L. c. 45 and public cemeteries by G. L. c.
114, §§ 17, 41. As to changes in use of public lands held by
municipalities or counties, generally, see G. L. c. 40, § 15A and G. L. c.
214, §3(11).
This is the background against which Article 97 was approved. The
doctrine of "prior public use" requires legislative action, by majority
vote, to divert land from one public use to another inconsistent public
use. As the cases discussed above indicate, the doctrine requires an act
of the Legislature regardless whether the land in question is held by the
Commonwealth, its agencies, special authorities and commissions, polit-
ical subdivisions or certain corporations granted powers of the
sovereign. And the doctrine applies regardless whether the public use
for which the land in question is held is a conservation purpose.
As to all such changes in use previously covered by the doctrine of
"prior public use" the new Article 97 will only change the requisite vote
of the Legislature from majority to two thirds. Article 97 is designed to
supplement, not supplant, the doctrine of "prior public use."
Article 97 will be of special significance, though, where the doctrine of
"prior public use" has not yet been applied. For instance, legislation
and a two-thirds roll-call vote of the Legislature will now for the first
time be required even where a transfer of land or easement between
governmental agencies, between political subdivisions, or between
levels of government is made with no change in the use of the land, and
even where a transfer is from public control to private.
Whether legislation pending before the General Court is subject to Ar-
ticle 97, or the doctrine of "prior public use," or both, it is recom-
mended that the legislation meet the high standard of specificity set by
the Supreme Judicial Court in a case involving the doctrine of "prior
public use":
"We think it is essential to the expression of plain and ex-
plicit authority to divert [public lands] to a new and inconsis-
tent public use that the Legislature identify the land and that
there appear in the legislation not only a statement of the new
use but a statement or recital showing in some way legislative
awareness of the existing public use. In short, the legislation
should express not merely the public will for the new use but
its willingness to surrender or forgo the existing use." (Foot-
note omitted.) Robbins v. Department of Public Works, 355
Mass. 328, 331.
P.D. 12 147
Each piece of legislation which may be subject to Article 97 should, in
addition, be drawn so as to identify the parties to any planned disposi-
tion of the land.
CONCLUSIONS
Article 97 of the Amendments to the Massachusetts Constitution es-
tablishes the right of the people to clean air and water, freedom from
excessive and unnecessary noise, and the natural, scenic, historic and
esthetic qualities of their environment. The protection of the people in
their right to the conservation, development and utilization of the ag-
ricultural, mineral, forest, water, air and other natural resources is de-
clared to be a public purpose. Lands, easements and interests therein
taken or acquired for such public purposes are not to be disposed of or
used for other purposes except by two-thirds roll-call vote of both the
Massachusetts Senate and House of Representatives.
Answering the questions of the House of Representatives I advise
that the two-thirds roll-call vote requirement of Article 97 applies to all
lands, easements and interests therein whenever taken or acquired for
Article 97 conservation, development or utilization purposes, even prior
to the effective date of Article 97, November 7, 1972. The Amendment
applies to land, easements and interests therein held by the Common-
wealth, or any of its agencies or political subdivisions, such as cities,
towns and counties.
I advise that "natural resources" given protection under Article 97
would include at the very least, without limitation: air, water, wetlands,
rivers, streams, lakes, ponds, coastal, underground and surface waters,
flood plains, seashores, dunes, marine resources, ocean, shellfish and in-
land fisheries, wild birds including song and insectivorous birds, wild
mammals and game, sea and fresh water fish of every description,
forests and all uncultivated flora, together with public shade and orna-
mental trees and shrubs, land, soil and soil resources, minerals and
natural deposits, agricultural resources, open spaces, natural areas, and
parks and historic districts or sites.
I advise that Article 97 requires a two-thirds roll-call vote of the
Massachusetts Senate and House of Representatives for all transfers be-
tween agencies of government and between political subdivisions of
lands, easements or interests therein originally taken or acquired for Ar-
ticle 97 purposes, and transfers of such land, easements or interests
therein from one level of government to another, or from public owner-
ship to private. This is so without regard to whether the transfer be for
the same or different uses or consistent or inconsistent purposes. I so
advise because such transfers are "dispositions" under the terms of the
new Amendment, and because "disposition" includes any change of
legal or physical control, including but not limited to outright con-
veyance, eminent domain takings, long and short-term leases of what-
ever length and the granting or taking of easements.
I also advise that //?//Y/-agency changes in uses of land from Article 97
purposes, although they are not "dispositions," are similarly subject to
the two-thirds roll-call vote requirement.
148 P.D. 12
Read against the background of the existing doctrine of "prior public
use," Article 97 will thus for the first time require legislation and a spe-
cial vote of the Legislature even where a transfer of land between gov-
ernmental agencies, between political subdivisions or between levels of
government results in no change in the use of land, and even where a
transfer is made from public control to private. I suggest that whether
legislation pending before the General Court is subject to Article 97, or
the doctrine of "prior public use," or both, the very highest standard of
specificity should be required of the draftsmen to assure that legislation
clearly identifies the locus, the present public uses of the land, the new
uses contemplated, if any, and the parties to any contemplated "disposi-
tion" of the land.
In short. Article 97 seeks to prevent government from ill-considered
misuse or other disposition of public lands and interests held for conser-
vation, development or ufilization of natural resources. If land is mis-
used a portion of the public's natural resources may be forever lost, and
no less so than by outright transfer. Article 97 thus provides a new range
of protection for public lands far beyond existing law and much to the
benefit of our natural resources and to the credit of our citizens.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 46 June 20, 1973
Honorable John F. Kehoe, Jr.
Commissioner of Public Safety
1010 Commonwealth Avenue
Boston, Massachusetts 02215
Dear Commissioner Kehoe:
You have requested my opinion on two questions relating to con-
tinued approval by you of Sunday licenses for certain games known as
Skill Right, Fascination, Skill Light, Bing-O-Reno and Light A Line.
You have advised me that the game Skill Right has been licensed by the
Department of Public Safety since 1949, and the other games to which
you refer were given temporary approval as Sunday games by the then
Commissioner of Public Safety in 1962. You question whether you may
continue to approve such Sunday licenses in view of the enactment of
St. 1971, c. 486, entitled "An Act Authorizing the Licensing of a Game
Commonly Called Beano."
I proceed first to a consideration of the pertinent statutory provisions.
The power of the Commissioner of Public Safety to approve Sunday
licenses is derived from G. L. c. 136, § 4, which provides in pertinent
part:
"(1) The mayor of a city or the selectmen of a town, upon
written application describing the proposed dancing or game,
P.D. 12 149
sport, fair, exposition, play, entertainment or public diver-
sion, except as provided in section one hundred and five of
chapter one hundred and forty-nine, may grant, upon such
reasonable terms and conditions as they may prescribe, a
license to hold on Sunday, dancing or any game, sport, fair,
exposition, play, entertainment or public diversion for which
a charge in the form of payment or collection of money or
other valuable consideration is made for the privilege of being
present thereat or engaging therein, except horse racing, dog
racing, boxing, wrestling and hunting with firearms; provided,
however, that no such license shall be issued for dancing for
which a charge in the form of the payment or collection of
money or other valuable consideration is made for the
privilege of engaging therein; and provided further, however,
that no license issued under this paragraph shall be granted to
permit such activities before one o'clock in the afternoon;
and provided further, that such application, except an
application to conduct an athletic game or sport, shall be ap-
proved by the commissioner of public safety and shall be
accompanied by a fee of two dollars, or in the case of an ap-
plication for the approval of an annual license by a fee of fifty
dollars."
St. 1971, c. 486, § 2 inserts a new section 22B in Chapter 271 of the
General Laws so as to legalize, under certain express conditions, "the
game commonly called beano, or substantially the same game under
another name in connection with which prizes are offered to be won by
chance . . ." St. 1971, c. 486, § 3 (inserting G. L. c. 271, § 52) provides,
in part, that "[n]o such license shall be granted to allow the operation,
holding or conduct of [the game referred to in G. L. c. 271, § 22B] on a
Sunday."
Thus, the question for resolution is whether the games to which you
refer come within the language of G. L. c. 271, § 22B, i.e., "substan-
tially the same game under another name," so as to prevent the licensing
of such games on Sundays. For the reasons stated hereinafter. I beg to
be excused from answering the question.
It is well settled that the Attorney General does not resolve factual
questions. As early as 1897, the then Attorney General ruled that "[h]is
[the Attorney General's] business is to deal with questions of law only."
I Op. Atty. Gen'l 461, 462. The principle has been affirmed by my pre-
decessors on many occasions. Whether the games to which you refer are
so similar to beano as to come within the language of the beano statute
involves factual determinations which are more appropriately made by
you. as Commissioner. A comparison of the games, the way they are
played, and the degree of skill involved in playing them are not legal
questions within my province.
You should be advised, however, that before passage of St. 1971, c.
486, Beano, or substantially the same game under another name, was
150 P.D. 12
prohibited under all circumstances all days of the week. If licenses have
been issued for certain games since 1949. it would appear that the De-
partment has made a judgment that those games were not such as of-
fered prizes to be won by chance but rather involved an element of skill
sufficient to satisfy the Department that they came within the purview of
G. L. c. 136, § 4. St. 1971, c. 486 has not in any way affected games
covered by § 4 of c. 136.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 47 June 21, 1973
Honorable Wallace C. Mills
Clerk of the House of Representatives
State House
Boston, Massachusetts 02133
Dear Sir:
I have the honor to reply as follows to the Order of the House of Rep-
resentatives, H. 6874, requesting the Attorney General of the Com-
monwealth to render an opinion on the following question:
"Whether the Department of Correction, through its
Commissioner, John O. Boone, was in violation of Chapter
777 of the Acts of 1972, liie Prison Reform Act, on the matter
of granting and administering a furlough to inmate Joseph W.
Subilosky on March 25, 1973, under the provision of Chapter
777, '(/) For any other reason consistent with the reintegra-
tion of a committed offender into the community'? Specifi-
cally, the furlough papers for Mr. Subilosky stated the reason
and purpose of his release was lo visit with niece and chil-
dren'."
H. 6874 states:
"Recently, Commissioner John Boone authorized the re-
lease on furlough of one Joseph W. Subilosky — 30785, of
M.C.I. Walpole, who later escaped, and was recaptured 40
days after his release.
"Mr. Subilosky was sentenced on April 29, 1966 to life im-
prisonment for first degree murder and has also been con-
victed for armed robbery 15-25 years concurrently: and lar-
ceny as well as a record of other charges.
"Mr. Subilosky was an offender committed for life with no
possibility of parole."
Chapter 777 of the Acts of 1972, entitled "An Act Relative to the
Administration and Operation of Correctional Institutions and Facilities
P.D. 12 151
in the Commonwealth/" made changes in various chapters of the Gen-
eral Laws. Section 18 of c. 777 amended G. L. c. 127 by striking out §.
90A and inserting the following section:
"The commissioner may extend the limits of the place of
confinement of a committed offender at any state correctional
facility by authorizing such committed offender under pre-
scribed conditions to be away from such correctional facility
but within the commonwealth for a specified period of time,
not to exceed fourteen days during any twelve month period
nor more than seven days at any one time; provided that no
committed offender who is serving a life sentence or a sen-
tence in a state correctional facility for violation of [certain
sections of G. L. c. 265 and 272 relating to manslaughter and
various serious crimes] or for an attempt to commit any crime
referred to in said sections shall be eligible for temporary re-
lease under the provisions of this section except on the rec-
ommendation of the superintendent on behalf of a particular
committed offender and upon the approval of the commis-
sioner . . . Such authorization may be granted for any of the
following purposes: (a) to attend the funeral of a relative; (h)
to visit a critically ill relative; (c) to obtain medical, psychiat-
ric, psychological or other social services when adequate
services are not available at the facility and cannot be ob-
tained by temporary placement in a hospital under sections
one hundred and seventeen, one hundred and seventeen A,
and one hundred and eighteen; (d) to contact prospective em-
ployers; (e) to secure a suitable residence for use upon re-
lease on parole or discharge; (f) for any other reason consis-
tent with the reintegration of a committed offender into the
community . . ."
Thus the new § 90A authorizes the Commissioner of Correction to
"extend the limits of the place of confinement of a committed offender
at any state correctional institution by authorizing such committed of-
fender under prescribed conditions to be away from such correctional
facility . . ."' but only in the enumerated cases, including that specified
in clause (/). namely, "for any other reason consistent with the reinteg-
ration of a committed offender into the community." H. 6874 recites
that Joseph W. Subilosky was sentenced to life imprisonment for first
degree murder. Under G. L. c. 265, § 2, "[n]o person shall be eligible
for parole . . . while he is serving a life sentence for murder in the first
degree; but if his sentence is commuted by the governor and council
under the provisions of section one hundred and fifty-two of said chap-
ter, he shall thereafter be subject to the provisions of law governing
parole for persons sentenced for lesser offenses."
A committed offender not eligible for parole cannot be reintegrated
into the community so long as his ineligibility remains in effect, and
therefore, is not entitled to be away from the correctional institution
152 P.D. 12
under clause (/). Moreover, the indicated reason for Subilosky's tem-
porary release, namely, "to visit with nieces and children," does not fall
within the purview of clauses («)-(/). and we cannot read into the statute
any other purpose which would sanction a temporary release for that
reason because the list of reasons specified in clauses (a) through (/) is
exclusive.
Accordingly, a temporary release of a committed offender serving a
life sentence and not eligible for parole "to visit with nieces and chil-
dren" is not authorized by clause (/) of c. 90A, inserted into G. L. c. 127
by St. 1972, c. 777, § 18.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 48 June 22, 1973
Honorable Robert L. Meade
Chairman, Department of Public
Utilities
Leverett Saltonstall Building
100 Cambridge Street
Boston, Massachusetts 02202
Dear Mr. Meade:
You have requested my opinion relative to the application of Western
Massachusetts Electric Company (WMECO), an electric company as
defined by c. 164 of the General Laws, for approval in writing by your
Department pursuant to § 17A of c. 164 of the General Laws of its
guaranty of the payment of principal and interest to the extent of 15% of
$15 million principal amount of 30-year notes which its wholly-owned
subsidiary. The Rocky River Realty Company, proposes to issue and
sell to institutional investors.
Section 17A of c. 164, as most recently amended by c. 340 of the Acts
of 1966, reads as follows:
"No gas or electric company shall, except in accordance
with such rules and regulations as the department shall from
time to time prescribe, loan its funds to, guarantee or endorse
the indebtedness of, or invest its funds in the stock, bonds,
certificates of participation or other securities of, any corpo-
ration, association or trust unless the said loan, guaranty or
endorsement, or investment is approved in writing by the de-
partment. A director, treasurer or other officer or agent of a
gas or electric company who makes such loan, guaranty or
endorsement or purchases such securities or votes to au-
thorize such loan, guaranty or endorsement or such purchase
in violation of this section shall be punished by a fine of not
more than one thousand dollars or by imprisonment for not
P.D. 12 153
more than one year, or both. Any company supplying elec-
tricity in bulk which is authorized by special act to engage in
manufacture or to construct mills or factory buildings, or to
otherwise construct or develop real estate for industrial pur-
poses, shall be exempt froni the provisions of this section."
You have advised me that your Department has not promulgated any
rules or regulations pursuant to the quoted section.
You further advise that the electric company contends that the pur-
pose of rules and regulations under § 17A would be to specify those oc-
currences or transactions which need not be specifically approved in
writing by your Department. In all other instances, it believes written
approval would be necessary.
You indicate that another possible interpretation is that your
Department's written approval always is needed and that such approval
must be in accordance with prescribed rules and regulations, and there-
fore, you pose the following questions:
"1. Is the adoption of rules and regulations pursuant to
Section 17A a prerequisite for Department of Public Utilities
approval of a guaranty by an electric company of notes of its
subsidiary?
"2. Does the language of Section 17A mean that the
rules and regulations mentioned therein merely specify those
transactions which need not be approved in writing by the
Department of Public Utilities?''
The ambiguity arises by reason of the fact that the prohibition against
loans, guaranties, etc. is qualified by the "except" clause and the "un-
less" claus.e. In this context the word "unless" would appear to have
the same meaning as the word "except." Sullivan v. Ward, 304 Mass.
614. 615, 616. The question naturally arises whether the prohibition does
not apply if the conditions expressed in both exceptions are complied
with, or whether the exceptions are alternative conditions, either of
which may be complied with.
Section 17A is a penal statute, and as such, exceptions therein should
be construed liberally in favor of a person charged with a violation of the
statute. It would follow, therefore, that the contention of WMECO is
correct, and that in the absence of rules and regulations under § 17 A, it
need merely obtain your Department's written approval.
Accordingly, I answer your questions as follows:
1. No.
2. In my opinion, the General Court intended that, if your
Department saw fit to adopt applicable rules and regulations,
they would specify the conditions and requirements which
would have to be complied with in order to validate a prop-
osed loan or guaranty without the necessity of Department
^PP""*^^^'- Very truly yours,
ROBERT H. QUINN
Attorney General
154 P.D. 12
Number 49 June 22. 1973
Honorable Charles C. Cabot, Jr.
Chainnan, Outdoor Advertising Board
80 Boylston Street
Boston, Massachusetts 021 16
Dear Mr. Cabot:
In your letter dated May 18. 1973 you state:
"The Board respectfully requests you to answer the follow-
ing question of law: Is the sign painted on the Penn Central
railroad bridge over Parker Street (Route 21) in Springfield
subject to the jurisdiction of this Board under Sections 29-31
and Section 33 of Chapter 93 of the General Laws?"
*****
"The sign faces on and is displayed within view of said
Parker Street (Route 21), a public way. The sign advertises
and is maintained by the Ludlow Savings Bank.
"Ludlow Savings Bank has filed application #47772 for a
State permit for this sign. The City of Springfield has ob-
jected to approval of this application and has requested a
hearing pursuant to Section 29A of Chapter 93 of the General
Laws."
General Laws, c. 93, § 29 authorizes the Outdoor Advertising Board
to make, amend or repeal rules and regulations for the proper control
and restriction of billboards, signs and other advertising devices, except
as provided in section thirty-two. on public ways or on private property
within public view of any highway, public park or reservation," and §
29A directs the Board to hold a public hearing on applications for a state
permit within its jurisdiction where the city or town objects and desires
to appear in opposition.
General Laws, c. 93, § 32 provides:
"Sections twenty-nine to thirty-one, inclusive, and section
thirty-three shall not apply to signs or other devices on or in
the rolling stock of any common carrier, nor shall said sec-
tions apply to signs or other devices on or in stations, sub-
ways or structures of or used by any common carrier unless
such signs or devices are displayed within view of a public
way."
Section 32. prior to its amendment by St. 1964, c. 466, read as follows
in the Tercentenary Edition of the General Laws:
"Sections twenty-nine to thirty-one, inclusive, and thirty-
three shall not apply to signs or other devices on or in the rol-
ling stock, stations, subways, or structures of or used by
common carriers, except advertising signs or other advertis-
ing devices on bridges or viaducts, or abutments thereof."
P.D. 12 155
As used in the Tercentenary Edition, the word "structures" clearly
included '"bridges or viaducts, or abutments thereof." since these words
were carved out as an exception from the word "structures." St. 1964.
c. 466, which substituted the present § 32. clearly includes all structures
having signs "displayed within a view of a public way," and therefore
includes the Penn Central railroad bridge over Parker Street which is a
public way.
I conclude that the Ludlow Savings Bank sign painted on the Penn
Central railroad bridge over Parker Street is a sign displayed within view
of a public way; that §§ 29-31 and 33 of G. L. c. 93, apply to it; and that
your Board has jurisdiction over it and may schedule a hearing on the
application for a permit.
Very truly yours,
ROBERT H. QUINN
Attorney General
Number 50 June 29, 1973
Honorable Wallace C. Mills
Clerk of the House of Representatives
State House
Boston, Massachusetts 02133
Dear Sir:
I have the honor to reply to the Order of the House (H. 6836) which
provides as follows:
"Ordered, That pursuant to Section 9 of Chapter 12 of the
General Laws of the Commonwealth of Massachusetts, the
House of Representatives hereby respectfully requests the
Attorney General of the Commonwealth to render opinions
on the following important questions of law. to wit: —
1. Can a majority of a special commission, duly ap-
pointed, organize to do business?
2. Is it necessary that all appointments be made and said
appointees duly sworn, before a special commission can or-
ganize to do business?
3. Can the Governor of the Commonwealth, the Presi-
dent of the Massachusetts State Senate, or the Speaker of the
Massachusetts House of Representatives by their failure to
appoint members to a special commission duly established
(i.e. see Chapter 8 of the Resolves of 1973) cause said com-
mission to be unable to function and. in fact, hold individual
veto power with relation to such a commission which has
been established under due process of law?"
The first sentence of Chapter 8 of the Resolves of 1973 provides:
"RESOLVED, That a special commission, to consist of
56 P.D. 12
three members of the senate, five members of the house of
representatives, and three persons to be appointed by the
governor, is hereby estabUshed for the purpose of making an
investigation and study of all matters pertaining to the en-
forceability of the provisions of law restricting the weights of
vehicles upon public ways." (Emphasis supplied.)
The underlined words appearing in the above sentence from Chapter 8
of the Resolves of 1973 is the usual language in Resolves creating Spe-
cial Commissions for the purpose of making an investigation and study,
and the inquiry of the House and my reply will therefore be applicable to
Special Commissions created by the same or substantially the same lan-
guage.
Implicit in the questions posed by the House in H. 6836 is the as-
sumption that appointments must be made by the House and the Senate
and the Governor as a condition precedent to the organization of the
Special Commission established by Chapter 8 of the Resolves of 1973. I
do not think that that is a correct interpretation.
General Laws, c. 4, § 2A provides in part as follows:
"In construing statutes the following rules shall be ob-
served, unless their observance would involve a construction
inconsistent with the manifest intent of the law-making body
or repugnant to the context of the same statute:
*****
"Third, Words and phrases shall be construed according to
the common and approved usage of the language: but techni-
cal words and phrases and such others as may have acquired
a peculiar and appropriate meaning in law shall be construed
and understood according to such meaning.
•k 'k -k -k -k
"Fifth, Words purporting to give a joint authority to. or to
direct any act by, three or more public officers or other per-
sons shall be construed as giving such authority to. or direct-
ing such act by. a majority of such officers or persons."
The words "to consist of three members of the senate, five members
of the house of representatives, and three persons to be appointed by the
governor," as they appear in the Resolve, merely indicate that a com-
mission of eleven members, consisting of members appointed as indi-
cated, is established. The words "to consist of," in short, do not import
a mandate that the three appointing authorities must make the appoint-
ments. I turn then to the question of whether a lesser number than elev-
en can organize the Special Commission.
Clause Fifth of G. L. c. 4, § 6, quoted above, makes clear that a ma-
jority of the eleven members of the Special Commission can act. for
such a construction would not be "inconsistent with the manifest intent
of the law-making body or repugnant to the context of the same stat-
ute." I believe that this rule of construction applies to the act of organi-
157 P.D. 12
zation. The Special Commission is an agent of the General Court per-
forming an investigatory function. Commonwealth v. Favulli, 352 Mass.
95. 100. It would seem that the Legislature, in the absence of any ex-
press provision to the contrary, would intend that the rules applicable to
its organization apply to Special Commissions. Am. 33 of the Articles of
Amendment of the Constitution of the Commonwealth provides in part
that "[a] majority of the members of each branch of the general court
shall constitute a quorum for the transaction of business." This has been
interpreted as requiring a majority of the entire body for permanent or-
ganization. I Op. Atty. Gen. 1892, p. 36. This is consistent with the
usual practice in legislatures in other states. "A majority of the elected
members of either legislative body may convene and organize it in the
absence of any constitutional restriction." 89 C.J.S. § 30.
Accordingly, if an eleven-man commission is established, as in the
case of Chapter 8 of the Resolves of 1973, six members when appointed
and qualified could organize the Special Commission, and it would be
immaterial whether the unappointed members are those to be designated
by a particular appointing authority, namely, the Speaker of the House,
the President of the Senate, or the Governor.
Therefore, the answers to the questions put by the House in H. 6836
are as follows:
1. Yes
2. No
3. No
Very truly yours,
ROBERT H. QUINN
Attorney General
11
61
31
108
32
109
36
123
38
127
P.D. 12 158
INDEX TO OPINIONS
AGENCY AND TOPIC OPINION PAGE
Advisory Board of Pardons:
Minimum sentences; crimes committed while on
parole ; subsequent parole 7 51
Board of Dental Examiners:
Programs of study permitting students of dental
hygiene to "drill and cut hard and soft tissue"; Mass.
Dental Practice Act 23 85
Civil Service, Division of:
Citizenship and residency requirements for applicants.
Position of Deputy City Auditor in the City of
Cambridge
Domicile as criterion for restricting entrance to
e xaminat ions
Civil Service employees working in DES. Department
of Labor and Industries
Adjustment of grades of all applicants improperly
graded on the same question
Clerk of the House of Representatives:
Petitions for legislation to exempt certain offices of the
Town of Methuen from the provisions of the Civil
Service Law 22 83
Violation of St. 1972. c. 777 in granting furlough to one
Joseph W. Subilosky 47 150
Special Commissions; organization to do business 50 155
Commerce and Development, Department of:
Operation of a glass container manufacturing plant by
an Indiana corporation in Milford, Massachusetts 8 54
Community Affairs, Department of:
Urban renewal plan for Park Plaza project, inaction by
Mayor and City Council of Boston 12 63
Department of Youth Services:
Propriety of detaining juveniles bound over to Superior
Court for trial in Charles Street Jail 27 94
Division of Industrial Accidents:
Type of bond required to be filed by Mass. Bay Trans-
portation Authority under Gen. Laws c. 152, § 25 A (2)
(b) 43 137
Education, Department of:
Interpretation of Gen. Laws c. 74. §7; apprenticeship
training programs administered by Department of
Labor and Industries 20 77
Authority of Teacher's Retirement Board to authorize
reimbursement to cities and towns for pension
payments 39 128
Emergency Finance Board:
Approval of borrowing by City of Brockton for school
project 44 137
59 P.D. 12
ACiENCV AND TOFMC OPINION PAGE
Action h\ Board on loan authorizations for approved
school projects when estimated construction grant
equals or exceeds amount ot the loan authorization .... 14 67
Governor:
Pension rights of the widow ot" the late Judge Samuel
E. Levine 21 78
Governor's Council:
Pro tanto av\ards for eminent domain takings by DPW. 4 46
Challenges to constitutionality of statues: appealability 9 56
Massachusetts Commission Against Discrimination:
Constitutionality of St. 1972, c. 786, the so-called "anti
blockbusting"" statute 35 119
Massachusetts Parole Board:
'"Defective Delinquent"" classification as of November
I. 1971 28 100
Massachusetts Science and Technology Foundation:
Personal liability of individual members of Board of
Governors to reimburse Commonwealth for monies
accepted pursuant to appropriations acts containing
"pay back"" provisions 10 58
Massachusetts State College Building Authority:
Reimbursement to Commonwealth for the cost of
utilities furnished by Commonwealth to the Authority. 30 105
Massachusetts State Lottery Commission:
Institution of "The Instant Game" 34 114
Metropolitan District Commission:
Rate of compensation for officers who attend as wit-
nesses for the Commonwealth in criminal cases at
times other than during their regular tour of duty 26 90
Outdoor Advertising Board:
Jurisdiction over the sign painted on the Penn Central
railroad bridge over Parker Street in Springfield 49 154
Public Health, Department of:
Administering certain medication by student nurses.... 1 39
Testing of marihuana samples submitted by law en-
forcement officials 6 50
Public Safety, Department of:
Collection of fees from both Commonwealth and pri-
vate builders and owners of property for certificates of
approval 13 65
Detective Lieutenant Inspectors; assignment to Divi-
sion of Fire Prevention; entitlement to career incentive
benefits 16 70
State Police helicopter as "civil aircraft"" subject to
state or federal taxes 24 87
Approval of BEANO licenses for conducting the game
on Sundays 25 88
Exemption of steam boilers on motor vehicles from
yearly inspections 40 130
Continued approval of Sunday licenses for certain
games 46 148
29
104
41
131
42
133
P.D. 12 - 160
AGENCY AND TOPIC OPINION PAGE
Public Utilities. Department of:
Application of Western Mass. Electric Company for
approval of its guaranty of 30-year notes to be sold by
a subsidiary 48 152
Public Welfare, Department of:
Use of funds appropriated in fiscal "73 for bills incurred
in fiscal "72 3 4-5
Public Works, Department of:
Issuance of checks to assignees of proceeds of land
damage awards
Disposal of vehicles towed to and stored upon land of
the Commonwealth by lessee of land
Relocation benefits, replacement dwellings, and "other
vacant land" under St. 1972, c. 765
Registration, Board of:
Inspector of wires as licensed master or journeyman
electrician 5 47
Representative Michael J. Lombard!:
Necessity for legislation authorizing Middlesex County
Commissioners to sell or lease property, etc. of Mid-
dlesex County Training School 37 126
Retirement Law Commission:
Method to be used in computing the compensation to
be paid to former state employees who, while receiving
a pension, have returned to active state service 19 74
Speaker of the House of Representatives:
Questions regarding Article 97 of the Articles of
Amendment to the Constitution of Massachusetts 45 139
Treasurer and Receiver General:
Widows of public employees who had been retired for
"ordinary disability;" annuities
Constitutionality and construction of St. 1972. c. 807,
§3
Application for accidental disability retirement where
employee was originally retired for ordinary disability.
University of Massachusetts:
Authority to enter into leases and tenancies for office
space 2 40
Veterans Services, Division of:
Assistance for payment of expenses incurred for the
care, attendance, and instruction of mentally retarded
children of veterans in special schools 17 72
15
69
18
73
33
114
'iff ^i'
15 4'?
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