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

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'?