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

Public Document No. 12 



Ollyp Qlommanujfaltt) of Iflafiflafliuspttfi 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1974 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 
1500-6-76-128827 Estimated Cost Per Copy: $1.73 



Public Document 



No. 12 



OIt?p (Hommnmupaltl) of iHaHsarljuBettii 



REPORT 



OF THE 



ATTORNEY GENERAL 



FOR THE 



Year Ending June 30, 1974 




Publication of this Document Approved by Alfred C. Holland, State Purchasing Agent. 

1500-6-76-128827 ^ . j ^ „ ., 

Estimated Cost Per Copy: $1.73 



(5!]p (IJammoniuealtlj of MaafiarliuaettB 

Boston, December 4, 1974 

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, 1974. 

Respectfully submitted, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 



Uli|P Qlmnmmtiuealtli of ilassacIiUBetta 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
ROBERT H. QUINN 

First Assistant Attorney General 
Paul A. Good 



Robert P. Abrams 
Nicholas A. Arenella 
Robert E. Barrett 
Kenneth A. Behar 
Lawrence T. Bench 
W. Channing Beucler 
Daniel T. Brosnahan 
Howard J. Camuso 
Charles E. Chase^ 
Paul K. Connolly, Jr. 
George Contalonis 
Richard E. Daly 
Gerald D. D'Avolio^ 
Danielle deBenedictis 
Samuel R. DeSimone 
Richard C. Donovan 
Bernard F. Dwyer 
Eleanor A. Dwyer 
Robert D. Epstein 
George F. Foley 
Charles F. Furcolo 
Robert J. Gallagher 
David B. Gittiesohn 
Herbert N. Goo.dwin 
Robert V. Greco^ 
Joel S. Greenberg 
Charles E. Inman^ 
John J. Irwin, Jr. 
Edward D. Kalman 
James X. Kenneally 
James P. Kiernan 
Paul J. Killgariff 
John P. Larkin 
Carter Lee 
Arthur P. Loughlin 
Sandra Lynchi 



Assistant Attorneys General 

Alan G. Macdonald 
Peter F. Macdonald'" 
Charles M. MacPhee 
Bernard J. Manning 
Walter H. Mayo, HI 
James P. McAllister 
James P. McCarthy** 
James D. McDaniel, Jr. 
John F. McGarry 
Gregor L McGregor 
John C. Mihos 
David A. Mills 
James T. Morris 
. Henry F. O'Connell 
Lawrence J. O'Keefe 
Brian T. O'Neill 
Hugh B. OMalley 
Terence P. O'Malley 
Joel Pressman 
Harvey F. Rowe 
Frank J. Scharaffa 
Edward F. Schwartz 
Frederick J. Sheehan 
Barbara Ann Smith 
George W. Spartichino 
George A. Stella 
Dennis M. Sullivan 
Robert L. Surprenant 
John T. Twomey 
Bruce D. Twyon' 
David B. Vigoda 
John J. Ward 
Sarah L. Wasserman 
Wade Welch 
Andrew M. Wolfe" 
Christopher H. Worthington 



Assistant Attorney General: Director Division of Public Charities 

Francis V. Hanify 



P.D. 12 



Assistant Attorneys General Assigned to Department of Public Works 

Roger L. Aube George Jacobs 

Garrett M. Byrne David A. Leone 

Richard R. Caples Edward M. Mahoney 

Thomas J. Crowley Hugh Morgan 

John P. Davey John H. O'Neii 

Dennis L. Ditelberg Joseph A. Pellegrino 

Richard T. Dolan T. David Raftery 

Richard T. Egan Leo A. Reed** 

Stephen A. Ferguson Paul E. Ryan 

James J. Haroules Herbert L. Schultz 

James F. Hart Sidney Smookler 

John F. Houton David S. Tobin 
Richard W. Hynes 

Assistant Attorneys General Assigned 

to the Division of Employment Security 

Joseph S. Ayoub Hartley C. Cutter 

Assistant Attorney General Assigned to the Veterans Division 
Harold J. Keohane^ 

Chief Clerk 
Russell F. Landrigan 

Assistant Chief Clerk 
Edward J. White 

'Appointed September 1973 "Terminated November 1973 

^Appointed January 1974 'Terminated December 1973 

^Appointed March 1974 'Terminated January 1974 

^Appointed April 1974 ^Terminated February 1974 

^■Terminated November 1973 '"Leave w/o pay October 1974 



P.O. 12 - 7 

STATEMENT OF APPROPRIATIONS AND EXPENDITURES 

FOR THE PERIOD 
JULY 1, 1973 - JUNE 30, 1974 

EXPENDITURES 

0810-0000 Administration $2,981,383.43 

0810-6610 Anti-Trust Settlement — Concrete Pipe Case 51.756.90 

0810-6613 Consumer Protection — Research and Pilot 

Program 99,042.87 

0810-6614 Organized Crime Investigation Training and Pre- 
liminary Design of Technical Assistance Center... — 
0810-6616 Drug Training, Manual and Technical Assistance. 9,731.99 

0810-6618 Training and Reference Materials 9.950.00 

0810-6619 Organized Crime Unit 57,771.44 

0810-6620 Drug Intelligence Information 64,424.67 

0810-6621 Criminal Appellate Program 53,851.71 

0810-6622 Prosecution Management Study 21,000.00 

0810-6623 WIN — Public Service Employment Program 6,966.67 

0810-6624 Organized Crime Unit 29,366.73 

0810-6625 Drug Intelligence Information System 238.05 

0811-6614 Attorney General Trust Fund — 

0821-0100 Settlement of Claims 198,328.42 

$3,583,812.88 
APPROPRIATIONS 

0810-0000 Administration $3,667,175.61 

08 1 0-66 1 Anti-Trust Settlement Concrete Pipe Case 51 ,756.90 

0810-6613 Consumer Protection Research and Pilot Program 

0810-6614 Organized Crime Investigation Training and Pre- 103,234.79 

liminary Design of Technical Assistance Center... 575.20 

0810-6616 Drug Training, Manual and Technical Assistance. 12,189.88 

0810-6618 Training and Reference Materials 29,365.08 

0810-6619 Organized Crime Unit 67,094.24 

0810-6620 Drug Intelligence Information 65,078.83 

0810-6621 Criminal Appellate Program 58.283.54 

0810-6622 Prosecution Management Study 25,000.00 

0810-6623 WIN — Public Service Employment Program 6,966.67 

0810-6624 Organized Crime Unit 36,000.00 

0810-6625 Drug Intelligence Information System 238.05 

081 1-6614 Attorney General Trust Fund 219.30 

0821-0100 Settlement of Claims 200,000.00 

$4,323,178.09 
INCOME 

0801-40-01-40 Fees — Filing Reports Charitable Organizations.. $17,451.00 

0801-40-02-40 Fees — Registration Charitable Organizations 5,077.00 

0801-40-03-40 Fees — Professional Fund Raising Council or 

Solicitor 110.00 

0801-62-02-40 Reimbursement for Services Cost of 

Investigations 19,009.50 

0801-69-99-40 Miscellaneous 4,483.44 

$46,130.94 



8 P.D. 12 

®ljE (Eammoutuealtli nf MaasatliUBettH 

DEPARTMENT OF THE ATTORNEY GENERAL 

Boston, December 4, 1974 

To the Honorable Senate and House of Representatives: 

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

INTRODUCTION 

My sixth 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, 1973 to June 30, 1974. 

The work of the Department during the past year has increased in all 
phases, particularly in the area of litigation. An overall increase of ten 
percent in court cases has been brought about as a result of constitu- 
tional law decisions which have affected every phase of our society. 

The development of environmental protection legislation and regula- 
tions has increased the case load of our Environmental Protection Divi- 
sion. We have intervened in several Atomic Energy Commission hear- 
ings and will continue to intervene, when necessary, to protect the pub- 
lic interest. 

Fiscal 1974 has brought additional important litigation involving 
school desegregation. Our Administrative Division continues to provide 
excellent representation in this area. 

Our Contract Division successfully defended new requirements for 
the employment of minorities in public contracts, in the case of 
Associated General Contractors v. Altshuler, decided favorably in the 
Court of Appeals for the First Circuit. 

The coming term of the United States Supreme Court should provide 
a decision in United States v. Maine, a case which will determine the 
ocean territory of coastal states. 

The emphasis on civil rights has brought on a new wave of prisoners' 
rights suits of all descriptions. These matters are being handled by our 
Criminal Division. 

Fiscal 1974 has shown a marked increase in consumer complaints 
which are being processed by our main and branch offices. 

The test of residence preference for police officers and its blending 
into the decree in Castro v. Beecher should be settled with finality 
within the next months. 

Each year in service as your Attorney General has brought new chal- 
lenges. We have met them through negotiation, through litigation, and 
through a series of legislative proposals which have resulted in benefits 
to the general public in the areas of consumer protection, environmental 
protection, civil rights and criminal justice. 



P.D. 



We will continue to serve the people of the Commonwealth in our 
every official act in order to achieve "Liberty and Justice for All." 



ADMINISTRATIVE DIVISION 

During the Fiscal Year, the staff of the Division prepared forty-six 
formal opinions for the signature of the Attorney General. In addition, 
eighty informal opinions were issued, signed by the Chief of the Divi- 
sion or various Assistant Attorneys General assigned to the Division. 
Six requests for legal opinions were withdrawn for mootness, the Divi- 
sion processed eight initiative petitions under the provisions of Article 
48 of the Articles of Amendment to the Constitution of the Common- 
wealth, and one hundred and eight opinions were issued under the pro- 
visions of the conflict of interest statute, G.L. c. 268A. Numerous other 
requests for legal advice were settled through oral conversations or in 
conference. 

Several of the opinions deserve separate comment. In an opinion to 
the Registrar of Vital Statistics (No. 4, July 26, 1973), the Attorney 
General determined that a person between the ages of 18 and 21, whose 
parents resided in another state, could establish domicile in Massachu- 
setts for the purpose of obtaining a marriage license within the Com- 
monwealth. In an opinion to the Criminal History Systems Board (No. 
23, November 30, 1973), the Attorney General delineated the require- 
ments for dissemination of court records under the new criminal history 
records act. In a landmark opinion to the Secretary of State (No. 29, 
January 24, 1974), the Attorney General held that the birth of a child 
could be recorded using the mother's maiden name. In an opinion to the 
Commissioner of Banks (No. 44, May 28, 1974), the Attorney General 
approved the use of a revolving credit plan for savings banks. Finally, in 
an opinion to the Board of Public Accountancy (No. 46, June 10, 1974), 
the Attorney General stated that the requirement that a public accoun- 
tant be a United States citizen prior to registration was unconstitutional 
and cannot be enforced. 

The staff of the Administrative Division continued its practice of pro- 
viding advisory services to all constitutional officers and state agencies 
on an as needed basis, thereby obviating formal resolution of many 
questions and avoiding litigation where possible. 

Litigation continued to occupy the principal attention of the members 
of the Division's staff Files on three hundred fifty-five new cases of a 
general nature were opened during the Fiscal Year, approximately a ten 
percent increase over the previous Fiscal Year. The increased caseload 
was handled by a smaller staff than in Fiscal Year 1973. An equal 
number of cases devoted solely to issues arising under the state welfare 
statutes were handled by Division personnel. At present, such matters 
require the full time services of four attorneys, with a fifth attorney 
available on a part time basis. 



10 P.D. 12 



Significant litigation handled by the staff of the Division during the 
Fiscal Year included the constitutional challenge to the mandatory re- 
tirement age for state police officers {Murgia v. Commomvealth, United 
States District Court), the state and federal litigation involving racial 
balance and desegregation of the public schools in the cities of Boston 
and Springfield {School Committee of Boston v. Board of Education, 
Supreme Judicial Court; Morgan v. Hennigan, United States District 
Court; School Committee of Springfield v. Board of Education, Su- 
preme Judicial Court), the constitutional challenge to the 
Commonwealth's divorce statutes {Tumposky v. Judges of Probate, 
United States District Court), the Reorganization proceedings involving 
the Boston and Maine Railroad {In re Boston and Maine Railroad, 
Debtor, United States District Court), and the litigation involving con- 
stitutionality of the residency preference for policemen {Town of Milton 
V. Civil Service Commission, Supreme Judicial Court). 

During the Fiscal Year, the staff of the Division appeared in all of the 
courts of the Commonwealth. The Division is responsible not only for 
initiating actions in the name of the Attorney General and at the request 
of various constitutional officers and state agencies, but it is also 
charged with the defense of petitions for judicial review under the state 
administrative procedure act and the civil service review act, appeals 
from the Appellate Tax Board which involve either the State Tax Com- 
mission or the Commissioner of Corporations and Taxation, appeals 
from the orders of the Commissioners of Insurance and Banking, and 
appeals from orders of the Department of Public Utilities, to name only 
a few. The litigation is varied in scope and complexity, and the staff of 
the Division performed their tasks well. 



CITIZENS' AID BUREAU 

Individuals with a variety of problems continue to call upon the Citi- 
zens' Aid Bureau daily. This division attempts to cut governmental red 
tape, thereby eliminating the frustrations citizens feel when shuffled 
through governmental departments. It is an information center while at 
the same time trying to assist individuals with their particular 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 the technical aspects of a problem, but also one which is re- 
sponsive 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 to rights of minors to erroneous parking tickets to landlord tenant 
situations, to handicapped individuals. In short, they range across the 
board. 



P.D. 12 11 

The Bureau continues to maintain an excellent working rapport with 
other state agencies in an effort to deliver the best services to the people 
of the Commonwealth. An added emphasis this year has been on helping 
senior citizens. In addition to answering their every day questions, the 
office scheduled a series of seminars or workshops in an effort to en- 
lighten citizens of their rights and benefits as well as to explain the 
changing laws. 

Two pamphlets were written and distributed expressly for senior citi- 
zens. An 1 1 page pamphlet What To Do Now . . . details for widows 
and widowers all the benefits to which they are entitled. The second 
publication. Help for Senior Citizens . . . Getting it All Together, is a 
wallet size, fold out listing information of vital importance to the elderly. 

The work of our Spanish speaking liaison remains an important part of 
the office especially since the self awareness of the Spanish speaking 
community is daily increasing. Two publications distributed in the of- 
fice, The Citizen and His Policeman and Innocent Victims of Violent 
Crimes have been translated into Spanish. Additionally, the oiffice par- 
ticipated in various programs and cultural festivities sponsored by the 
Spanish community. 

The student volunteer program with several colleges and high schools 
in the greater Boston area remains an integral part of the Bureau. Many 
of our students from past years have gone on to social service careers. 

Making government more responsive to the needs of the citizens of 
the Commonwealth remains the key to the Bureau. 



CIVIL RIGHTS AND LIBERTIES DIVISION 

The Division continues to have as one of its major responsibilities the 
legal representation of the Massachusetts Commission Against Dis- 
crimination (MCAD), the state agency which has primary responsibility 
for the enforcement of the state's anti-discrimination laws. 

In representing the MCAD in court in the case of Peahody Little 
League, et al v. MCAD the Division was able to secure injunctive relief 
against two little league teams which paved the way for girls' participa- 
tion on previously all male little league teams for the first time in this 
state. 

The important case of East Chop Tennis Cluh, et al v. Massachusetts 
Commission Against Discrimination was decided favorably to MCAD. 
The Supreme Judicial Court in that case held that the MCAD must be 
permitted in the first instance to make its own findings of fact essential 
to its determination of jurisdiction before resort may be had to the 
courts. 

In Raanan Katz, et al v. Massachusetts Commission Against 
Discrimination our Supreme Judicial Court upheld the authority of the 
MCAD to include as part of its order the requirement that a Respondent 
place certain equal opportunity advertising in the newspapers. 



12 PD- 12 

The popular pamphlet "The Citizen And His Policeman" which was 
revised to conform to recent changes in the law continues to be distrib- 
uted by the Division. More than 109,000 were distributed during the 
year. Recently, the pamphlet has been printed in Spanish which, hope- 
fully, will insure that our Spanish citizens will be apprised of their recip- 
rocal rights and duties at time of arrest. 

The number of citizen complaints directed against police officers 
showed a marked increase during the year. Our investigation of some of 
those complaints indicates the need on the part of responsible public of- 
ficials to provide a meaningful way in which such complaints may be 
handled with equity and justice to all concerned. It does not appear that 
our present system for handling such complaints meets those standards. 

The Division handles countless numbers of complaints alleging viola- 
tion of civil rights and liberties. These complaints emanate from the af- 
fluent as well as the poor. Of major concern is the invasion of individual 
privacy. The Division in this connection has been able to secure assur- 
ances from certain employers that they will no longer subject employees 
or applicants for employment to lie detector tests in violation of state 
law prohibiting such tests. Of equal concern is the practice of some em- 
ployers to pass on to others, without receiving the involved individual's 
consent, certain information, whether founded or not, from employee 
personnel records. This problem seems of sufficient magnitude to invite 
detailed study in the upcoming year. 



CONSUMER PROTECTION DIVISION 

The Consumer Protection Division continues to broaden its scope of 
operations and activity. This service to the public has provided a great 
relief to consumers who have been unable to resolve their problems in 
the areas of investment and spending. 

In the Consumer Protection Division, State House, Boston, which in- 
cludes the Volunteer Division, complaints totaled 9,898 between the 
period of July 1, 1973 through June 30, 1974. During this same period, 
10,935 complaints were investigated by the eight Consumer Protection 
Division branch offices throughout the state. The total amount of sav- 
ings and refunds attributed to the efforts of the Consumer Protection 
Division, including the Volunteer Division, was $321,149. Branch office 
savings totaled $595,030, bringing the grand total of monies saved for 
fiscal '73-74 to $916,179. Coupled with the actual savings and refunds to 
consumers during this period, thousands of cases were closed on the 
basis of resolutions satisfactory and agreeable to both complainants and 
respondents. This would ordinarily not have resulted had the Depart- 
ment of the Attorney General not been contacted. 

On the basis of complaints reported but which did not come under the 
jurisdiction of the Consumer Protection Division and branch offices, 
remedies were suggested, guidance provided, and referrals were made to 
other official consumer agencies and regulatory boards. 



P.D. 12 13 



In the Consumer Protection Division office in the State House, doors 
are open to the public from 9:00 a.m. to 5:00 p.m. daily. There is a con- 
tinuous flow of consumers seeking advice for their problems and re- 
questing legal consultation. A conservative estimate would be in the 
area of 150-200 per week. 

Incoming telephone calls to the Consumer Protection Division, State 
House, have averaged between 600-700 per day, an increase over the 
previous year. As a result of the vast number of incoming calls, a special 
section was established to screen calls, thus providing the capacity to 
assist the consumer in a more expeditious and efficient manner with re- 
gard to information requests and instructions for tiling complaints. 

A target area for helping the consumer continues to be the field of 
consumer education. It is vital that the public be made aware of new 
laws and the proper approach to wise buying. Staff members are con- 
stantly called upon for speaking engagements. Consumer literature is in 
constant distribution throughout the state, coupled with press releases 
and news columns which play an important part in getting our message 
across. Radio and TV spots add to the process of public education and 
exposure. High school and college students have grasped the signifi- 
cance of consumer education. They realize the importance of being 
knowledgeable about this mushrooming field which touches their every- 
day lives through their pocketbooks. They have grasped the theory that 
"A wise buyer is an informed buyer." 

The complaint volume has been building steadily at the Consumer 
Protection Division branch offices throughout the state. Consumers are 
becoming more aware that they now have these services at their dis- 
posal. The branch offices provide on-the-scene operations and investiga- 
tions and can often be more effective and better informed on complaints 
and patterns of activity for this reason. The Attorney Generafs expan- 
sion plan for branch offices has received national recognition and 
Massachusetts is considered a leader in Consumer Protection and the 
Consumer Movement. 



Contracts Division 

The Contracts Division has Department responsibility in the follow- 
ing areas: 

1. Litigation. To represent the Commonwealth in all civil actions 
brought by it or against it involving contractual claims. This also in- 
cludes litigation responsibility in all types of actions involving state pub- 
lic works construction and competitive bidding matters. 

2. Public Contracts Review. To review, on a consistent basis, all state 
contracts, leases, and bonds for correctness of legal form. 

3. Advice. To render continuous advice and guidance to state officials 
concerning competitive bidding procedures, public construction matters, 
and preparation, drafting, and proper execution of contracts and leases 
affecting their departments. 



14 P.D. 12 



4. Investigation. To investigate complaints brought by individual citi- 
zens and public officials concerning alleged competitive bidding viola- 
tions and public construction irregularities. 

5. Legislation. To develop legislation in areas dealing with public con- 
struction and competitive bidding. 

6. Opinions. To research and draft formal opinions of the Attorney 
General dealing with public construction and competitive bidding proce- 
dures. 

7. Municipal Assistance. To render informal advice and assistance to 
municipal officials in furtherance of its role in monitoring public com- 
petitive bidding practices and procedures statewide. 

The Division was faced with a heavy load of litigation. Four of the six 
attorneys in the Division devoted most of their time to trial work. More 
than 300 cases were handled by the Division during this fiscal year. 

The bulk of litigafion regularly handled by this Division, and generally 
the most complex and time consuming, involved state highway, building, 
and public works construction claims. These claims are generally for 
considerable sums of money and require extensive trial preparation and 
attention. 

One of the more significant cases handled by this Division, attracting 
nadonal interest for furthering equal employment opportunity for qual- 
ified minority construction trade workers, was Associated General Con- 
tractors of Massachusetts v. Alan Altshuler. The contractors' associa- 
tion and thirteen individual construction companies brought suit in the 
Federal District Court against the Commonwealth's Executive Office of 
Transportation and Construction and the Bureau of Building Construc- 
tion for an injunction against the Commonwealth's contract requirement 
that the contractor take "every possible measure" to maintain 20 per- 
cent minority employment in each job category on the $16 million Bos- 
ton State College construction project. The Federal District Court held 
that the challenged provisions did not constitute an impermissible 
"quota" but are a proper attempt to remedy the present effects of past 
discrimination in Boston's construction trades. This decision was af- 
firmed on appeal by the Court of Appeals for the First Circuit, and the 
United States Supreme Court denied the plaintiffs' petition for a writ of 
certiorari. This case marked the first time that a court has been asked to 
sanction a plan for hiring a specific percentage of minority workers that 
requires an employer to take every possible measure to reach the goal 
on each job site, and placed upon him the burden of proving compliance 
under threat of sanctions. 

The Division successfully defended the Group Insurance Commis- 
sion, in the Superior Court, from legal challenge of its bidding proce- 
dures by Massachusetts Blue Cross and Blue Shield, in connection with 
the awarding of a new $36 million group health and life insurance con- 
tract covering approximately 60,000 state employees. The plaintiffs' ap- 
peal to the Supreme Judicial Court was withdrawn. 

In another important case, Vappi & Company, Inc. v. Walter 
Poitrast, the Superior Court rejected the contractor's claim for approx- 



P.D. 12 15 

imately $400,000 for furnishing precast concrete piles for the state 
Treatment Training and Research Center in Boston. A final decree was 
entered requiring the contractor to furnish and install the concrete piles 
in accordance with the contract specifications, at no additional cost to 
the Commonwealth. 

The Division has reviewed approximately 3,500 contracts and leases 
for the Commonwealth during this fiscal year. Each document must be 
thoroughly considered and expeditiously handled to permit the 
Commonwealth's business to proceed without interruption. In addition, 
the form of all documents prepared in connection with note issues and 
notice of sale bonds under financial assistance housing programs for the 
elderly and veterans of low income is reviewed and approved by this 
Division. 

With a view to establishing early guidance procedures to prevent later 
litigation from developing, the Division has continuously given advice 
and assistance to officials from over 80 state agencies. Members of the 
Division have attended, moderated, and directed numerous conferences 
with public officials involving public construction, competitive bidding, 
and contract matters. 

The Division has undertaken an active role in the investigation of 
numerous complaints brought by individual citizens and public officials 
concerning alleged violations of competitive bidding and public con- 
struction laws. Most of the complaints involved municipal bidding mat- 
ters and were satisfactorily adjusted in cooperation with local officials. 
Several investigafions of alleged bidding and construction irregularities 
are currently being conducted by Division personnel. 

The Contracts Division was instrumental in drafting legislation on col- 
lective purchasing (G. L., c. 7, §§ 22A, 22B), authorizing two or more 
political subdivisions, including the Commonwealth, to join together or 
with the State Purchasing Agent for the purpose of obtaining and accept- 
ing competitive bids on similar items of materials, supplies or equip- 
ment. The Division also rendered advisory assistance to numerous state 
officials in legislative drafting. In addition, this Division is currently ac- 
tively involved in discussions with the New England Region of the Pub- 
lic Contract Law Section, American Bar Association, concerning a 
proposed model state procurement code. 

Members of the Division have been called upon from time to time to 
research and draft numerous informal opinions and memoranda to 
numerous state agencies concerning a variety of contract matters. The 
Division also researches and drafts formal opinions of the Attorney 
General in the area of competitive bidding procedures. 

In addition, the Division has readily responded to inquiries of munici- 
pal officials seeking advice and guidance in competitive bidding and pub- 
lic construction matters, a service we believe complementary to the 
Department's efforts to foster consistency in the proper application of 
procedures and practices in these areas throughout the Commonwealth. 

Finally, the Division continues to make a special effort to encourage 
closer cooperation between it and the agencies it serves. Because the ac- 



16 P.D. 12 



tivities of the Division bring it in close touch with the varied operations 
of state government, this Division is in an excellent position to provide 
assistance in the earliest stages of potentially troublesome situations and 
to give essential leadership in the area of public contract law. We take 
pride in the results of our efforts. 



Criminal Division 

The Criminal Division continued to function within the framework of 
three sections: Organized Crime, Appellate, and Trial, although it 
should be noted that increased interaction of personnel and supportive 
services effected extraordinary productivity within the division. 

I. THE ORGANIZED CRIME SECTION 

The Organized Crime Section is a specialized unit involved in the col- 
lection of organized crime intelligence information, the investigation of 
criminal offenses, and the prosecution of these cases. Intelligence in- 
formation is disseminated to interested agencies. This section cooper- 
ates with all levels of law enforcement personnel, providing background 
material and intelligence information concerning organized crime figures 
and others. The following are some of the significant accomplishments 
of this Section for fiscal year 1974: 

On October 27, 1973, State Police Officers from this unit led a series 
of gaming raids on twenty-six locations throughout the Commonwealth 
resulting in the arrest of seventeen individuals. These raids were the 
culmination of an investigation which was conducted for approximately 
eighteen months and centered in the New Bedford-Fall River areas. 
This investigation employed the use of court-authorized electronic sur- 
veillance. 

On March 29, 1974, State Police Officers from this unit and the Crim- 
inal Information Bureau of the Massachusetts State Police conducted a 
series of raids throughout the Commonwealth and arrested seven people 
on narcotics and firearms violations. 

The evidence seized in these raids, together with evidence obtained 
from the use of court-authorized electronic surveillance, led to the in- 
dictment in April of 1974 of twelve persons for conspiracy to violate the 
state narcotics law. 

On March 30, 1974, State Police Officers from this unit led a series of 
gaming raids on twenty-five locations in the Springfield area. These 
raids resulted in the arrest of twenty-two individuals and the seizure of 
gaming apparatus. These raids were the culmination of a six-month in- 
vestigation during which court-authorized electronic surveillance was 
utilized. 

In this fiscal period, the Organized Crime Section conducted two ex- 
tensive investigations into alleged irregularities at the Brighton Five 
Cent Savings Bank and the Hellenic Credit Union of Peabody. The 
Brighton Five Cent Savings Bank investigation resulted in the indict- 
ment of thirteen corporations for the misapplication of bank funds and 



P.D. 12 



17 



larceny by bank officers. The investigation of the Hellenic Credit Union 
resulted in the indictment of five individuals for the misappropriations of 
the credit union's funds and larceny by the president of the credit union. 
The Organized Crime Section has been an active member of the Law 
Enforcement Intelligence Unit since 1968. The purpose of the Law En- 
forcement Intelligence Unit is to establish a communication system for 
the exchange of organized crime data between member agencies 
throughout the United States and Canada. In fiscal year 1974. the Or- 
ganized Crime Section conducted 135 special investigations at the re- 
quest of out-of-state law enforcement agencies. These requests were 
from member agencies of the Law Enforcement Intelligence Unit. 

II. THE TRIAL SECTION 

The Trial Section is responsible for a broad range of matters falling 
within the division's jurisdiction. Its investigative personnel (State 
Police Detective Lieutenants) receive complaints of alleged criminal ac- 
tivity from a variety of sources and initiate preliminary investigations. 
Complaint sources include citizen referrals, complaints from govern- 
mental department heads, and matters initiated internally. 

The Trial Section assigns attorneys to prosecute those matters refer- 
red from the Organized Crime Section and cited in the summary above. 

In the continuing effort to combat welfare frauds this section vigor- 
ously pursued both recipient and vendor frauds which resulted in a large 
number of convictions, effecting the return of hundreds of thousands of 
dollars to the Commonwealth. A special note of credit and appreciation 
is extended to the several District Attorneys who, at the request of the 
Attorney General, successfully prosecuted many cases involving wel- 
fare fraud. 

This section continued to assist various department heads in prosecu- 
ting offenses discovered by their agencies; for example, the section as- 
sisted law enforcement officers of the Department of Natural Resources 
in the successful prosecution of numerous criminal violations which 
threatened the valuable natural resources of the Commonwealth. 

As part of a continuing effort to assist the District Attorneys, experi- 
enced prosecutors from the Criminal Division were sent into the coun- 
ties to aid in the fight against crime at the local level. This interchange of 
manpower and supportive personnel has, it is suggested, been of consid- 
erable mutual advantage. 

III. CRIMINAL APPELLATE SECTION 

During this fiscal year it has been apparent that there is no longer a 
clearly definable "Criminal Appellate Section" within the Criminal Di- 
vision. A distinction in definition of functions within the Criminal Divi- 
sion did exist from the early sixties through the early seventies. During 
that period the Criminal Appellate Section was a distinct sub-division of 
the Criminal Division, and the parameters of responsibility within the 
Criminal Appellate Section were relatively clear: the section was re- 
sponsible for the defense of appeals which were taken from convictions 
in the state courts in cases where the Attorney General (rather than a 
District Attorney) had been the prosecuting authority in the state court 



P.D. 12 



of a criminal matter. Additionally, the Criminal Appellate Section was 
responsible for briefing and arguing cases in the United States Supreme 
Court whenever a case involved a question of Massachusetts criminal 
substantive law or the administration of criminal justice in Massachu- 
setts. This Section handled such cases before the United States Sup- 
reme Court regardless of whether the question of law arose in a Criminal 
Division criminal case, or in a criminal case initially prosecuted by one 
of the several District Attorneys within the Commonwealth. 

There is little historical data (or significance, for that matter) as to 
when the change began in the Criminal Appellate Section, although it is 
clear that the change was the result of the series of United States Sup- 
reme Court decisions of the sixties with respect to the criminal law. As 
the rights of criminal defendants were enlarged, correlatively the ques- 
tions that could be raised by criminal defendants on appeal, or after they 
had been convicted or incarcerated ("post-conviction"), expanded as 
never before. 

During the same period access by state prisoners to the federal court 
by the vehicles of the habeas corpus statute (28 U.S.C., § 2254) and the 
civil rights act (42 U.S.C., §1983) were broadened by court decisions, 
and the spectrum of relief available in federal courts to persons who had 
been convicted in state courts seemed to be constantly enlarging. 

By developing tradition, and to some extent, by practical necessity, 
the matters of prisoners' rights and post-conviction relief were routed to 
the Criminal Division within the Department. Traditionally, habeas cor- 
pus matters were routed to this division because such matters derived 
from criminal convictions in Massachusetts courts. And, as a practical 
matter, prisoners' rights complaints were similarly routed because of the 
developing expertise at the Criminal Division in dealing with the De- 
partment of Correction and with plaintiff-petitioners who were incarcer- 
ated persons. 

In the meantime, post-conviction and extraordinary matters in the 
state courts involving prisoners or questions of Massachusetts criminal 
law continued to be routed to the Criminal Division. As a result, the 
Criminal Division seemed to become a "catch-all" for various types of 
actions, representing various state officers and agencies, and being vari- 
ously responsible for criminal matters that were either explicitly dele- 
gated to the Attorney General by statute, or implicitly delegated by 
practical necessity. 

Within the Criminal Division, for reasons primarily of orderly use of 
professional manpower and record-keeping, these various matters and 
responsibilities came to be known as "criminal appellate" matters. This 
distinction and definition of scope of responsibility has continued. 

During the past fiscal year, the work which has been described as 
"criminal appellate" within the Criminal Division can fairly be further 
described as "extraordinary," and the following enumeration represents 
the general categories of cases and matters within this definition: 
1. The defense of criminal appeals in the state courts (Sup- 
reme Judicial Court and new Intermediate Appeals 



P.D. 12 19 



Court) which are taken by criminal defendants who are 
convicted in the state courts in cases prosecuted by the 
Attorney General. 

2. The defense of various forms of post-conviction petitions 
filed by state prisoners who have been convicted in 
Massachusetts courts under the prosecutorial jurisdiction 
of the District Attorneys of the Commonwealth. These 
petitions are primarily writs of error, writs of habeas 
corpus, writs of mandamus and writs of certiorari, and 
the cases have generally been concentrated in the Single 
Justice Session of the Supreme Judicial Court. 

3. The response to interlocutory petitions in the Supreme 
Judicial Court under G. L., c. 211, §3, seeking relief in 
pending criminal matters, usually during the course of 
proceedings in the Massachusetts District Courts. 

4. The defense of and response to federal habeas corpus 
petitions in the federal court by which convicted prison- 
ers in Massachusetts seek their release by order of the 
federal court reviewing the state criminal process under 
28 U.S.C. §2254. 

5. The defense of requests in the federal district court for 
three-judge courts under 28 U.S.C. §§2281, et. seq., 
seeking injunctions against the enforcement of state crim- 
inal statutes. 

6. The defense of federal civil rights actions in the federal 
court brought by state prisoners raising the entire spec- 
trum of the developing law of prisoners' rights. 

7. Matters on appeal to the Circuit Court of Appeals on 
questions of Massachusetts criminal substantive law and 
Massachusetts criminal procedure which are decided in 
criminal division cases in the federal district court and 
involve questions of interest and importance to the 
Commonwealth, its officers and agents. 

8. Cases on appeal or certiorari to the United States Sup- 
reme Court which involve questions of law concerning 
Massachusetts criminal law or procedure. The criminal 
division has traditionally represented the Commonwealth 
in these matters even though some of the cases and ques- 
tions may have originated in cases initiated under the 
jurisdiction of one of the several District Attorneys. 

9. The review and processing of interstate rendition matters 
referred to the Attorney General by the Governor pur- 
suant to G.L., c. 276, §15. 

10. Compilation of the annual ''Notice of Law" as provided 
by G.L.,c. 12, §6A. 

11. Miscellaneous matters such as review of proposed legis- 
lation, review of correspondence from other states' at- 



20 PD. 12 



torneys general with respect to the criminal law, atten- 
dance to criminal law committee assignments, etc. 
During the past fiscal year the following state agencies and officers 

have been represented by the Attorney General in matters referred to as 

"criminal appellate matters": 

1. The "Commonwealth" as party to criminal appeals and 
criminal writs of error. 

2. Justices of the several courts, sometimes collectively, in 
petitions under G.L., c. 211, §3, some miscellaneous 
civil complaints in the state courts, and infrequently as 
defendants in federal civil rights actions. 

3. Executive officers of the Department of Correction 
(Commissioner, Deputy Commissioner, etc.) and em- 
ployees of that Department in a variety of cases in both 
state and federal courts. 

4. Superintendents of the various correctional institutions 
as they are nominal parties respondent in habeas corpus 
proceedings in state and federal courts. 

5. Department of Public Safety personnel as they are nomi- 
nal parties respondent in habeas corpus proceedings re- 
sulting from the execution of executive warrants under 
the interstate rendition statute. 

6. Employees of the Departments of Mental Health, Public 
Health and Corrections, in both individual and official 
capacities, as defendants in civil rights actions when the 
plaintiff in such proceedings is a resident of a Massachu- 
setts correctional facility. 

7. Such other state departments, officers and agents as may 
be parties defendant or respondent in actions which in- 
volve questions of Massachusetts criminal law or proce- 
dure and when request for such representation has been 
made in accordance with prescribed statutory and/or de- 
partmental formulae. 

During the fiscal year, five of the sixteen Criminal Division attorneys 
received federal funding from the "Criminal Appellate and Post- 
Conviction Legal Services" project. These funds totalled $72,000 and 
were administered through the Committee on Criminal Justice. This 
federal funding experiment was initiated in November of 1972 and has 
produced a work product of the highest standard. Under this same pro- 
gram, student interns from the Boston area law schools furnished legal 
assistance of commendable quality to the attorneys of the Criminal Di- 
vision. Working under the direction of attorneys engaged in the criminal 
appellate funding experiment, students from the following Boston area 
law schools enjoyed some measure of experience in the work of the De- 
partment: Boston College, Boston University, Harvard, New England, 
Northeastern and Suffolk. 



« 



P.D. 12 21 

Although traditional writs of error in the state courts and petitions for 
habeas corpus in the federal courts continued to make up the "bulk" of 
"criminal appellate" work (during the fiscal year the case of Donnelly v. 
DeChristoforo, which arose from a petition for habeas corpus in the fed- 
eral district court, was successfully briefed and argued in the United 
States Supreme Court), considerable attention during the year has been 
devoted to the defense of civil rights actions in the federal court seeking, 
inter alia, damages against Massachusetts officers and employees. Ex- 
amination was made with respect to certain policy/statutory interpreta- 
tion matters concerning the defense of such cases. In this regard, the 
following matters seem representative of the problems which receive 
continuing review: 

1. Do the statutory responsibilities/authority of the Attor- 
ney General include the defense of these actions when 
there seems to be no unconditional jurisdiction of the At- 
torney General to appear in the federal court? See G.L., 
c. 12, §3. 

2. If the Attorney General does appear and defend in these 
types of cases, is his representation restricted to those 
employees enumerated in G.L., c. 12, §3D? 

3. Should the Attorney General re-examine and re-define 
the circumstances under which he will undertake to de- 
fend defendants in these actions, especially when activity 
on the part of defendants is alleged which, if proven true, 
would constitute a violation of Massachusetts criminal 
law? 

Finally, within the Criminal Appellate Section, initial consideration 
was given to the intra-departmental refinement of the "criminal appel- 
late" types of cases with the goal of eliminating from the Criminal Divi- 
sion many of the "civil" matters which, it has been determined, though 
expediUously processed in the Criminal Division, might be better super- 
vised in the "civil" context. 



Drug Abuse Section 

In September, 1969, the Drug Abuse Section was established within 
the Department of the Attorney General. The purpose of the Drug 
Abuse Section is to cooperate on a statewide basis with all segments of 
our Massachusetts society in a united effort against the drug problem. 

Since March, 1970, the Drug Abuse Secfion has conducted Drug 
Abuse Education Schools for law enforcement officials and other in- 
terested individuals. During 1974 a total often such schools were con- 
ducted with an enrollment of approximately 350 students. The schools 
were hosted by the following state and community colleges, with each 
graduate receiving 3 academic credits. 

September 10-20: Framingham State College, Framingham; October 
15-19, 23-25: Mt. Wachusett Community College, Gardner; November 



22 P.D. 12 



5-15: Northern Essex Community College, Gardner; December 3-13: 
Massasoit Community College, Brockton; January 7-17: Greenfield 
Community College, Greenfield; January 28-Feb. 7: Bunker Hill Com- 
munity College, Charlestown; March 4-14: Quinsigamond Community 
College, Worcester; April 1-11: Massachusetts Maritime Academy, 
Buzzards Bay; May 6-16: Holyoke Community College, Holyoke; June 
10-20: Bristol Community College, Fall River. 

The two-week course curriculum includes instruction in the following 
areas: federal and state drug laws; detection methods and procedures; 
law enforcement techniques; the legal and practical ramifications of 
search and seizure; the physiological, psychological and sociological as- 
pects of drug abuse; treatment and rehabilitation resources; and methods 
of promoting cooperation among agencies. 

An outgrowth of the police training program has been a program 
whereby graduates of the course are setting up drug intelligence net- 
works of county agencies that gather information about drugs, drug 
users, drug supplies and suppliers. 

The Drug Intelligence Unit, funded through an LEA A Grant, con- 
tinued operation in 1974 by assisting local police agencies in gathering, 
analyzing, and disseminating drug intelligence information. More than 
85% of our cities and towns have designated drug liaison officers to 
work in conjunction with the Drug Intelligence Unit. These liaison of- 
ficers forward information to the Unit which in turn analyzes the infor- 
mation and disseminates it to appropriate law enforcement departments 
and officials. The Unit also conducted a series of ten one-day seminars 
to discuss the following topics: recent changes in the Massachusetts 
Controlled Substances Act, federal and state search and seizure 
guidelines, and a review of the drug problems in the area. 

A major goal of the Drug Abuse Section has been to overcome the 
widespread misconceptions and ignorance within which drug abuse 
flourishes. The staff has already made significant headway in disseminat- 
ing information regarding the abuse of drugs and the sanctions provided 
by the law. They have spoken to parents, students, members of civic 
and professional groups, educators and legislators. 

As part of its drug education program, the Drug Abuse Section pub- 
lishes TRACKS, a bi-monthly newsletter on drugs; and two pamphlets, 
MASSACHUSETTS DRUG LAWS and DRUG ABUSE REFER- 
ENCE CHART. These materials have been disseminated among 
educators, students, professionals and other citizens throughout the 
Commonwealth. 



Eminent Domain Division 

The Eminent Domain Division is responsible for representing the 
Commonwealth in all litigation involving the acquisition of land. The 
Division acts as legal counsel to all agencies of the Commonwealth in: 
(1) the acquisition of land, whether the transfer is voluntary or involun- 
tary, (2) the disposal of land by the Commonwealth, and (3) all matters 



P.O. 12 23 

before the Land Court to which the Commonwealth is a party. In addi- 
tion, the Division is responsible for processing and disposing of all land 
damage actions filed against the Commonwealth under Chapter 79 of the 
General Laws. 

Approximately eighty (80) percent of our litigation consists of Peti- 
tions for the Assessment of Damages under Chapter 79. The remaining 
twenty (20) percent consist of Equity cases, Land Court Petitions, Fed- 
eral Eminent Domain proceedings against state land, claims for rent or 
use and occupancy and other miscellaneous special problems. Most of 
our cases originate in the Superior Court, and 40-50 percent are jury tri- 
als, (C. 983 of the Acts of 1973 requires trial by judge without jury in the 
first instance). 

Since November 1971, a steadily increasing percentage of our cases 
have been referred to Auditors in accordance with the orders of the 
Chief Justice. Several conferences with the Bureau of Public Roads 
were held concerning the attitude toward Auditor's findings, employ- 
ment of stenographers at the Auditor's hearings and the question of fed- 
eral contribution for both the Auditor's findings and the payment of 
stenographers and their transcripts. It was agreed that the Bureau would 
treat Auditor's findings as administrative settlements. In the event that 
the Auditor's findings are "substantially" above the review appraiser's 
figure, the Bureau would not participate in funding the award unless 
satisfied with all of the documentation. This, in effect, puts us in a posi- 
tion of re-trying all of these Auditor's cases, in which the Bureau of. Pub- 
lic Roads is involved, "de novo" in the Superior Court whenever the 
Auditor's figure is "substantially" in excess of the review appraiser's 
figure. The Bureau of Public Roads is involved in approximately 80% of 
the Auditor's cases handled by this Division. 

The implementation of the Uniform Relocation Assistance and Real 
Property Acquisition Policies Act of 1970 (P.L. 91-646) has placed many 
new aspects on the acquisifion of realty with any federal financial assis- 
tance. The provisions for additives to place former residential owners 
and tenants in decent, safe and sanitary housing, has substantially re- 
duced litigation for land damages, inasmuch as the recipient of the addi- 
tives, as a condition precedent, must sign a waiver of all amounts re- 
ceived in Court over and above the Pro Tanto and up to the amount of 
the additive. The 1970 Act increased the additive for residential owners 
to $15,000.00 which, in most cases, will wipe out any claim they have for 
damages above the Pro Tanto, should they participate in this program. 
An increasing number of former landowners are participating. 

A member of this Division sits on the Commission on Eminent Do- 
main. We also provide a legal advisor to the Real Estate Review Board 
to assist in settling damage claims on takings on government owned land 
for highway purposes; and in some instances, we are called upon to tes- 
tify before the Executive Council before they will approve land damage 
payments. 

The United States Supreme Court case of United States v. Maine, et 
al has required the time and efforts of members of this Division. The 



24 P.D. 12 



ultimate decision in this case will determine the extent of the ocean ter- 
ritory of coastal states. This landmark case is the thirty-fifth original 
jurisdiction case in the entire history of the United States Supreme 
Court. All of the evidentiary proceedings have been completed and 
briefs have been filed. The Master has indicated that he will not have his 
final draft ready until mid-1974. Also, we have been researching the 
question of off-shore drilling and core sampling off the Massachusetts 
coast, pending the outcome of the trial. 

The Commonwealth's motion for a preliminary injunction against un- 
derwater exploration off the coast of Massachusetts was denied in June, 
1972. The Supreme Court did, however, entertain the motion, indicating 
that there was merit to the claim. We met with the Department of 
Natural Resources, Woods Hole, Environmental Protection Division 
and Senator Bulger's Office on May 1, 1973 to clear the air on the ques- 
tion of new offshore drilling plans. The net result of this meeting and a 
subsequent application for another preliminary injunction was a decision 
by the Federal Government to forego offshore drilling this year. 

To date there has been no offshore oil exploratory attempts on the 
part of the federal authorities. This Division organized the Atlantic Sea- 
board Conference of Attorneys General, of which Attorney General 
Robert H. Quinn is now President. General Quinn has appointed a liti- 
gation committee of the conference to supervise the handling of the fed- 
eral case and a legislation committee which has filed two major bills in 
the Congress. 

Advisory services, both written and oral, are rendered to practically 
every state agency in existence, whether it be Executive or Legislative 
in nature. Every agency which has an eminent domain or real estate 
question or problem either writes or calls this Division for advice, help 
or an opinion. 

It is virtually impossible to estimate accurately the amount of time 
spent on this area. However, a reasonable estimate would be about 
75-100 manhours per week. 

Investigations are continually undertaken by personnel of this Divi- 
sion regarding appraisers used by the Commonwealth and alleged indis- 
cretions of Commonwealth witnesses. The results of all these investiga- 
tions to date have not resulted in criminal action, but we feel that they 
have resulted in our expert witnesses using a great deal more discretion 
in their activities. 

The following projects are also of prime concern: 

1. Long-range review and study of the eminent domain 
statutes with emphasis on basic changes resulting in ad- 
ministrative determination of damages and changes of the 
rules of evidence. 

2. Attempted resolution of the seaward boundaries. 

3. Compilation of a complete file for all eminent domain 
cases decided by the Supreme Judicial Court, anticipat- 
ing a revision of the Eminent Domain "Blue Book" 



P.D. 12 25 



where all cases would be annotated and a basis of each 
decision cited. (DPW refused application for printing 
costs and indicated no federal funds available as o\' this 
writing). 

4. Title examinations, drafting of orders of taking and 
negotiation settlements of claims for parcels throughout 
the State for Regional Mental Health Clinics. Commu- 
nity Colleges. State Colleges, University of Mas- 
sachusetts (Amherst, Boston, Worcester), Department 
of Natural Resources. Water Resources Commission. 
Registry of Motor Vehicles. Department of Public 
Safety. Southeastern Massachusetts Technological insti- 
tute. Division of Fisheries and Games, Lowell Tech- 
nological Institute and other state agencies, as requested. 

5. With regard to the railroad takings for the Southwest Ex- 
pressway, which is the extension of 1-95 from Route 128 
to the Innerbelt in downtown Boston, negotiations are 
still underway with General Counsel of the Department 
of Transportation. Federal Highway Administration and 
Bureau of Public Roads. The Governor's moratorium on 
the Southwest Expressway places these negotiations in a 
questionable status. 

At this juncture, we have the legal authority to take the railroad 
property without seeking permission of the Bankruptcy Court. We. do, 
however, have to acquire a Certificate of Public Convenience and 
Necessity from the Interstate Commerce Commission, pursuant to Title 
49, Section 1(18). 

We met with officials of the Bureau of Public Roads, and representa- 
tives of the General Counsel's Office of the Interstate Commerce 
Commission to attempt to establish procedural ground rules for the ob- 
taining of the certificate. Nothing definite has been decided at this point, 
and we are awaiting authority to release an appraisal figure to the rail- 
roads involved before taking any action with the l.C.C. (Moratorium 
has this effort in limbo). 

6. A Bill In Equity has been filed, in conjunction with the 
Environmental Division, against Fields Point Manufac- 
turing Corp., et al to force the respondents to remove il- 
legal fill in Commonwealth tidelands and restore 
Poponesset Creek to its natural condition. Depositions 
have been taken and the case is proceeding toward dis- 
position. The Auditor found against the Commonwealth 
and this case is now on appeal. 

7. The Massachusetts Environmental Protection Act. be- 
came effective July I. 1973. This requires all agencies, 
before they make any land takings for projects that will 
affect the environment, to perform an Environmental 
Impact Study. This has greatly affected the Department 
of Public Works in its road building plans. 



26 P.D. 12 

The Division handles the matter of collecting rent from tenants on 
property taken by Eminent Domain and owned by the Commonwealth. 
Suits have been commenced this past year against forty-three (43) delin- 
quent commercial tenants. Priority continues to be given to commercial 
tenants. Some three hundred twenty-four (324) delinquent tenants in- 
itiated rental payments in this period, and $99,903.00 has been received 
this period for past due rent. 

The moratorium on road building within the Rt. 128 area has di- 
minished the amount of new petitions. However, a crash program has 
been commenced by the Department of Public Works for construction 
and acquisition on other projects outside of the Innerbelt area and we 
are experiencing an increase in new petitions in this area. 

The present workload is based on land takings from 1967 to date, so 
that we have not experienced any decrease in court work other than 
when no judge is available for Civil Sessions. Lately, we have had a 
steady stream of Auditor's Hearings which take up a great deal of the 
attorneys' time. 

The following cases are on appeal to the Supreme Judicial Court: 

GENERAL BAKERY SALES & 

SERVICE, INC. V. COMMONWEALTH 

KELLY REALTY v. COMMONWEALTH 

LOUIS GALAVOTTI, ET AL v. COMMONWEALTH 

VARNEY BROTHERS v. COMMONWEALTH 

ROBERT H. QUINN v. FIELDS POINT 

MANUFACTURING CO. 



PENDING LAND DAMAGE CASES 

Pending 
as of 
County June 30 

BARNSTABLE 17 

BERKSHIRE 12 

BRISTOL 84 

ESSEX 162 

FRANKLIN 25 

HAMPDEN 99 

HAMPSHIRE 19 

MIDDLESEX 165 

NORFOLK 89 

PLYMOUTH 61 

SUFFOLK 186 

WORCESTER 171 

1.090 



P.D. 12 27 

PENDING LAND COURT CASES 

Pending 
as of 
County June 30 

SUFFOLK 132 



Employment Security Division 

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

During the fiscal year ending June 30, 1974, 1347 cases were handled 
by this Division. 1016 cases were on hand at the start of the year and 
331 new cases were received during the year, of which 105 were em- 
ployer tax cases; 213 were fraudulent claims cases, and 13 were court 
actions brought by or against the Director of the Division of Em- 
ployment Security. 

201 cases were closed during this fiscal year, of which 102 were em- 
ployer tax cases and 91 were fraudulent claims cases; / a Supreme Judi- 
cial court case, and 7 court actions brought by or againts the Director of 
the Division of Employment Security, leaving a balance of 1 146 cases on 
hand at the end of the fiscal year ending June 30, 1974. Monies collected 
totaled $454,734.79, with $334,436.29 as amount collected on employer 
tax cases and $120,285.50 collected on the fraudulent claims cases. 

The Attorney General's Employment Security Division is charged 
with the duties of pursuing those individuals found not complying with 
the Employment Security Law. and during this fiscal year the members 
of this Division, although inadequately staffed with secretarial help, did 
wage a more energetic and forceful program in handling all cases refer- 
red to the Division for criminal prosecution. At the same time, the At- 
torney General's office has maintained the policy of giving the erring in- 
dividual, corporation or business entity every opportunity to make set- 
tlement of the case 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 and only after they have had an opportunity to 
discuss the matter thoroughly. If this Division had been properly staffed 
with secretarial help, more criminal prosecutions would have been in- 
itiated. However, during this fiscal year we were only able to bring 119 
complaints against 84 employers, involving 857 counts of tax evasion to- 
taling $420,165.87 in monies owed the Commonwealth. 

In addition, there is presently pending in the Massachusetts Supreme 
Court an action brought by the Massachusetts Bar Association which 



28 



P.D. 12 



raises the question as to what constitutes the practice of law, and to 
what extent persons representing claimants or employers under Chapter 
1 51- A, General Laws should be required to be members of the Bar. 
There is also pending in the United States District Court a number of 
cases brought against the Division of Employment Security alleging that 
certain procedures set forth in our regulations, and approved by the De- 
partment of Labor, violate the plaintiffs' rights to due process under the 
Fourteenth Amendment. This Division represents the Director of the 
Division of Employment Security in these matters. 

Investigations made by this Division have greatly increased. They 
now include those conducted through the joint effort of this Division and 
that of the Criminal Division of the Attorney General's Department for 
the purpose of uncovering matters of collusion and conspiracy to com- 
mit larceny involving certain employees of the Division of Employment 
Security and individuals filing fraudulent claims for the purpose of ob- 
taining unemployment benefits. In addition, searches are continually 
made into the whereabouts of the defendants who defaulted court 
appearances in our criminal actions so that the Warrants may be served 
and the matters expedited through the courts. 

It should be noted, that because of the increased programs and prose- 
cutions more convictions resulted and substantial sums of money were 
collected. Employers and employees have been made aware of the 
penalties and restrictions imposed by Chapter 151-A, General Laws and 
as a result a marked decrease in the number of overall violations oc- 
curred in the areas where the Attorney General's Division had prose- 
cuted. Employers realized that employment security division taxes must 
be paid; and more claimants understand and respect the requirements of 
the Law governing their rights to unemployment benefits. 



For Fiscal Year Ending June 30, 1974 



Cases on hand July 1. 1973: 
Employer tax cases: 
Employee overpayment fraud cases: 
Supreme Judicial Court Cases — 
(On appeal from Board/Review decision): 

Additional Referrals: 
Employer tax cases: 
Employee overpayment fraud cases: 
Supreme Judicial Court Cases — 

(On appeal from Board/Review decision): 
D.E.S. Director Actions — 
(Brought in Superior Courts and U.S. Dist. 
Courts/by or against the Director): 

Total Cases During Fiscal Year: 
Cases Closed: 

Employer tax cases: 

1. Paid in full. 

2. Partial payment, balance uncollectible. 



595 
420 



105 
213 



42 
60 



1016 



331 



1347 



201 



102 



P.D. 12 29 



Employee overpayment fraud cases: 

1. Paid in full. 

2. Returned to Claims Investigation 
Department for Administrative Act 



90 

ion. I 



91 



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

Finding, upheld Division's Argument I 

D.E.S. Director Actions — 
(Brought in Superior Courts and U.S. Dist. Courts/ 

by or against the Director) 
Dispositions favorable to Director, D.E.S. 7 

Cases Remaining on hand June 30, 1974: 1146 

Employer tax cases: 598 

Employee overpayment fraud cases: 542 

Supreme Judicial Court Cases — 

(On appeal from Board/Review decision): 

D.E.S. Director Actions — 
(Brought in Superior Courts and U.S. District 
Courts,/by or against the Director): 6 

Total Monies Collected: $454,734.79 

From Employers: $334,436.29 

From Employees: $120,285.50 
Criminal Complaints Brought: 
Larceny Cases: No complaints brought. 

Tax Cases: 119 Complaints, involving H57 Counts brought against 84 employers re delinquent taxes 
tolaling $420,165.87. 



The Environmental Protection Division 

In its three and one-half year existence this division has witnessed a 
burgeoning caseload, formal creation by statute and rising public interest 
and participation in environmental enforcement. The division now 
serves the Commonwealth as trial counsel in all environmental matters, 
whether federal or state, criminal or civil. Together with referrals from 
client agencies seeking court action against polluters, citizen complaints 
provide increasing impetus and evidence for court actions. 

What might be termed routine court actions, pending or planned, to 
enforce Massachusetts pollution statutes now number 180, a threefold 
increase over the number of active files in 1971 when Attorney General 
Quinn formed this division by administrative order. Air and water pollu- 
tion actions each account for one-third of this total (57 and 60, respec- 
tively), with wetlands (45), solid waste (16) and outdoor advertising (2) 
litgation the remaining one-third. Suits against corporations and indi- 
viduals comprise two-thirds of these active enforcement cases, 
municipalities one-third. More vigorous pursuit of polluters by client 
agencies also has generated a large caseload, now at 69, calling upon the 
division to defend the Department of Public Health, Department of 
Natural Resources, Division of Water Pollution Control and the Out- 
door Advertising Board against challenges to the laws they administer or 
the orders they issue against specific violators. These enforcement and 



30 P.D. 12 



defense cases, plus other actions brought at the initiative of the Attorney 
General, total 202. This figure does not include the 65 cases fully resol- 
ved during this fiscal year. 

Final results in four of many lawsuits stand out. The U.S. Supreme 
Court, in a case arising in Colorado, agreed with Massachusetts and 
other intervenor states that government inspectors do not need search 
warrants or the owner's permission to enter a company's unrestricted 
premises to check for smoke pollution. This reaffirms the "unannounced 
inspection" as an important pollution monitoring tool. In another case, a 
two-year lawsuit against Foxboro Raceway for raw sewage discharges 
into the Neponset River was resolved by securing full compliance with 
the Clean Waters Act by construction of an underground waste treat- 
ment facility. In an air pollution action begun in 1971 the Attorney Gen- 
eral gave ten major airlines a clean bill of health for reducing smoke at 
Logan Airport by installing the last in a series of "reduced smoke com- 
bustor cans" on JT8D engines. Under the Wetlands Protection Act a 
court order was obtained against a 100-unit motel, restaurant, lounge 
and 396-unit condominium development on a 33-acre site on the banks of 
Webster Lake, for failure to secure the requisite approval of the local 
conservation commission before work in sensitive wetlands. 

Litigation was supplemented by special efforts, through legislation, to 
preserve the environment where not protected by existing law. Exam- 
ples include bills to close glaring loopholes in the Wetlands Protection 
Act and to create "civil" forfeitures" for pollution as an adjunct to the 
present injunctive and criminal remedies. Both illustrate the important 
function of the Attorney General to sponsor changes in present statues 
seen deficient through experience. As this fiscal year ends. Wetland 
Protection Act reforms near passage to increase the criminal penalty for 
illegal wetlands work, clarify what land and work is subject to the law, 
require the state Department of Natural Resources to implement the law 
with formal regulations, and facilitate resolution of contested issues. 
Most important, the bill would give any person — developer and citizen 
alike — the right to obtain a written opinion from the local conservation 
commission as to whether any specific land or work is covered by the 
statute. Also on the legislative front, the Attorney General testified 
strongly in support of reorganizing the state's environmental agencies, 
now in disarray, and vigorously against efforts to gut the Massachusetts 
Environmental Policy Act by exempting private projects damaging the 
environment. 

At federal Council on Environmental Quality hearings the Attorney 
General protested federal efforts to speed up off-shore drilling for oil 
and gas on the Georges Bank without knowing and avoiding possible 
environmental consequences and in the face of the still-unresolved con- 
troversy in the U.S. Supreme Court over state offshore jurisdiction. 
Also, suggestions were delivered to the federal Environmental Protec- 
tion Agency to assist its efforts to curtail auto use in metropolitan Bos- 
ton. As an adjunct to stiff controls which may eventually prove neces- 
sary Attorney General Quinn recommended immediate voluntary meas- 



P.D. 12 31 



ures to test the public's willingness to divorce the automobile and 
perhaps make unneeded some of the planned mandatory controls. In ad- 
dition, the Attorney General approved Public Restriction Tract Index 
regulations for Barnstable County. Promulgated thus far only by the 
Barnstable Register of Deeds, these rules govern recording and indexing 
"conservation restrictions" under Chapter 666 of the Acts of 1969. 
These restrictions allow real estate tax, estate tax and income tax be- 
nefits to private landowners who, while retaining control over their 
property, agree to keep land and water areas predominantly in their 
natural, scenic or open condition, or agricultural farming or forest use. 

Atomic energy proceedings continued to command much time and at- 
tention. No one Massachusetts agency is equipped or authorized to put 
sponsoring utilities to their proof in construction and operation of nuc- 
lear power plants. The task of coordinating research on the ocean im- 
pact of the planned Seabrook. New Hampshire nuclear plant, and pre- 
paring the Commonwealth's formal position, fell upon this division. The 
Atomic Energy Commission granted the Attorney General permission 
to participate in license hearings on behalf of Massachusetts as an "'in- 
terested state." The Seabrook site is only three miles from our border 
and operation will affect our coastal waters and salt marshes. As in the 
case of the Vermont Yankee proceeding concluded last year, full inter- 
vention for the Commonwealth also was sought and allowed by the 
A.E.C. in Boston Edison's request to build additional nuclear 
generators at Plymouth. A coalition of scientists provides the technical 
expertise on nuclear safety issues, and state environmental agencies on 
ecological concerns. Hearings will begin this fall. 

Plans are also in progress to intervene for the Commonwealth in 
A.E.C. proceedings to license construction by Northeast Utilities of 
$1.35 billion twin nuclear power plants on the Montaque Plain. Use of 
Connecticut River water for cooling, location near Quabbin Reservoir 
— the drinking water supply for metropolitan Boston, and presence of a 
ground water recharge area all militate for full intervention on safety and 
environmental grounds to protect the Commonwealth's interests. 

Four important enforcement actions are planned as of this writing. 
Runways under construction at Logan Airport may violate the Massa- 
chusetts Environmental Policy Act. If the Secretary of Environmental 
Affairs rules Massport's environmental analysis inadequate, the Com- 
monwealth will likely join the city of Boston and Boston residents in 
their efforts to require, by litigation in Superior Court, a full Environ- 
mental Impact Report for the runways project, as required by MEPA 
for any state work, project or activity which may cause damage to the 
environment. The City of Boston itself also appears vulnerable to suit 
for violating air quality standards at its South Bay Incinerator in Rox- 
bury, as efforts are running one year behind to build a new facility to 
meet July 1975 federal air quality deadlines. 

As to the City of Lawrence incinerator and city dump, with its long 
history of "open burning," an onsite inspection is planned to evaluate 
claims that both facilities have been closed permanently in response to 



32 P.D. 12 



earlier suits by the Attorney General. Efforts of the division and local 
officials have resulted in state designation of the Lawrence area as first 
priority for a landmark regional solid waste program calling for private 
waste management centers operated on public lands. This will be a wel- 
come solution to a long standing dilemma. 

Despite the division's accomplishments, however, difficulties persist 
in making litigation a viable enforcement weapon against pollution. Ex- 
cept in unique cases it remains difficult to secure prompt enforcement in 
the courtroom due to the scheduling delays to which all lawsuits are sub- 
ject. The Commonwealth's pollution abatement program still suffers 
from low visibility and inadequate staff and funding, all of which impair 
credibility and effectiveness. At a conference in Boston sponsored by 
Attorney General Quinn as President of the National Association of At- 
torneys General 34 assistant attorneys general from 22 states compared 
experience with these common problems and discussed techniques to 
bolster existing laws and agencies, increase citizen participadon in en- 
forcement, and secure federal funds for environmental enforcement 
functions of attorneys general. 

If our legislative and executive leaders maintain their resolve to com- 
bat pollution and if today's public concern does not give way to public 
apathy, the accomplishments of these last few years will not be lost. 



Industrial Accidents Division 

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 payments of compensation benefits and disbursements for 
related medical and hospital expenses in compensable cases. In con- 
tested cases this Division represents the Commonwealth before the In- 
dustrial Accident Board and in appellate matters before the Superior 
Court and the Supreme Judicial Court. 

There were 9490 First Reports of Injury filed during the last fiscal 
year for state employees with the Division of Industrial Accidents, an 
increase of 623 over the previous fiscal year. It should be noted at this 
point that there are more public employees who come under this juris- 
diction than ever before as a result of newly funded state projects. Of 
the lost time disability cases, this Division reviewed and approved 1444 
new claims for compensation, and the Division reviewed and approved 
all claims for resumption of compensation, of these 137 were verified 
and approved. In addition to the foregoing, the Division worked on and 
disposed of 120 claims by complete and final settlement by lump sum 
agreements and by payments without prejudice. 

This Division appeared for the Commonwealth on 615 formal assign- 
ments at the Industrial Accident Board and in the Courts on Appellate 
matters. The staff members are frequently requested to appear and par- 
ticipate in a number of informal conferences and discussions relative to 



P.D. 12 33 



the many issues involved in these industrial personal injury cases at the 
Industrial Accident Board, including the review of new cases for evalua- 
tion and approval by the Attorney General. In addition this Division 
must continually review the accepted cases, that is those cases which 
require weekly payments of compensation, and bring them up to date 
medically for further evaluation and determination before a Member of 
the industrial Accident Board. 

Total disbursements by the Commonwealth for state employees' in- 
dustrial accident claims, including accepted cases. Board and Court de- 
cisions and lump sum settlements, for the period July 1 , 1973 to June 30, 
1974, were as follows: 

General Appropriation 

(Appropriated to the Division of Industrial Accidents) 

Incapacity Compensation $2,614,968.40 

Medical Expenses 944,994.43 

Total Disbursements $3,559,962.83 

Metropolitan District Commission 

(Appropriated to M. D. C.) 

Incapacity Compensation $281,179.13 

Medical Expenses 93,921.17 

Total Disbursements $375,100.30 

In its capacity as custodian of the second injury fund under Section 65 
of Chapter 152, as most recently amended by Chapter 855 of the Acts of 
1973, the Division represents the Commonwealth before the Industrial 
Accident Board in petitions filed by insurers and self-insurers for reim- 
bursement out of this fund (now referred to as the "second injury 
fund""). 

It is to be noted that the "Quinn Bill Facilitating the Employment or 
Re-Employment of Disabled Workers"" referred to in this Division"s 
Annual Report of Fiscal year ending June 30, 1973. is now effective and 
law of this Commonwealth. By this amendment Section 65N of said 
chapter 152 is repealed, and there remains only one fund in accordance 
with Section 65, as most recently amended. 

In accordance with the provisions of the statute, insurers and self- 
insurers are required to make payments into this account in fatal indus- 
trial injury cases. This Division has the responsibility for enforcing this 
obligation requiring the staff to appear before the Industrial Accident 
Board in such cases and to meet with insurers" counsel to adjust, usually 
by negotiation, payments in cases where the issue of liability has been in 
question or compromised. 

At the end of this fiscal year the General Fund (Section 65 Fund) 
showed an unencumbered balance $889,072.93. As a result of the new 
"second injury"" legislation, there was transfered from the Section 65N 
fund to General Fund $256,072.90 in cash and $480,000.00 in securities. 
There were receipts to this fund in the amount of $68,342.07. and pay- 
ments made out of the fund amounted to $51,569.92. Additional se- 
curities in the amount of $100,000.00 were obtained and the income 



34 P.D. 12 



from proper investment was $22,400.97. indicating that the fund is 
operating on a sound fiscal basis at no expense to the taxpayers. 

Many requests are made of this Division for staff members to appear 
and participate in seminars relative to Workmen's Compensation Act 
and particularly to discuss the "new second injury law." Staff members 
have participated in such seminars at all of the District Offices of the 
Massachusetts Rehabilitation Commission in an effort to encourage the 
employment of handicapped people, the purpose of the enactment of the 
"Quinn Bill Facilitating the Employment or Re-Employment of Dis- 
abled Workers." 

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. This involves reviewing and acting 
upon claims awarding compensation to unpaid civil defense volunteers 
who were injured while in the course of their volunteer duties. 



Public Charities 

During the fiscal year 1974, there were 2722 trustee's accounts re- 
viewed; 490 Executor's accounts; 754 wills; real estate petitions re- 
viewed were 93; trustee appointments 21; conservators and adminis- 
trators appointed were 65; and the miscellaneous other matters pertain- 
ing to probate work were approximately 188. 

Escheated to the Commonwealth under Public Administration matters 
totalled $306,124.82 for the period. 

Also, under Public Administrations, there were 340 new appointments 
in the period with 555 cases closed out. 

Absentees, totalled 35 for the period and there were some 67 miscel- 
laneous matters handled in public administration. 

Under General Laws, Chapter 12, section 8F, 4,461 forms 12 were 
received, posted and filed and 872 accounts were received posted and 
filed in lieu of the Forms 12 in the fulfilling of the requirements of the 
said law. 

Under General Laws, Chapter 68, there were 448 forms filed of the 
Forms 1 1 , applications for certificate of registration to solicit funds from 
the public in the Commonwealth. 



The requirements of the Tax Reform Act caused the Trustees to pefi- 
tion for modification of instruments so as to pay out all the income and 
such amounts of principal as to avoid taxation in the FRANCES 
KNOWLES WARREN TRUST; in the GEORGE A. WALKER 
TRUST; in the LUKE and JERUSHA VOSE BLANCHARD 
SCHOLARSHIP FUND; in the HIRAM F. MILLS TRUST; in the 
D. BLAKELEY HOAR TRUST; in the HAROLD WHITWORTH 
PIERCE CHARITABLE TRUST; in the JOHN A. BIRD TRUST; in 
the MARY A. CAMPBELL TRUST; in the ESTHER L. FORD 



P.D. 12 35 



TRUST; in the HENRIETTA F. DEXTER TRUST; in the MAR- 
GARET BARR TRUST; in the MATILDA L. HEYDT TRUST; in 
the ALBERT H. STONE TRUST; in the CLARA L. TENNY 
TRUST and in the FRANK MONROE NOONAN TRUST. 

In the following trusts, because of the burdens of the Tax Reform 
Act, their assets were transferred by decree of Court to the Charity: 
Trustees under Indenture of TIMOTHY J. MAHONEY turned over 
the trust estate to EMMANUEL COLLEGE. The trust fund estab- 
lished in 1926 by many citizens to the City of Waltham, the Trustees of 
the HAROLD L. PRIDE FOUNDATION transferred its assets to 
WALTHAM ROTARY FUND, INC., a charitable corporation for 
educational purposes. 

During this year the following charitable corporations were dissolved: 
RALPH K. HUBBARD FOUNDATION, INC.; FRANCES WIL- 
LIAM PARK CORPORATION; PEMBROKE FRIENDS MEET- 
ING HOUSE ASSOCIATION; ROBINSON GENEALOGICAL 
SOCIETY, THAYER MUSEUM; CAPE COD MUSEUM OF HIS- 
TORY and ART, INC.; HAMPSHIRE COUNTY PUBLIC 
HEALTH ASSOCIATION, INC.; MASSACHUSETTS CONSER- 
VATION, INCORPORATED and PARKINSON RESEARCH 
FOUNDATION OF MASSACHUSETTS. 

In mid-January Assistant Attorneys General Hanify and O'Keefe par- 
ticipated in the meeting in Atlanta of the Sub-Committee of the NA- 
TIONAL ASSOCIATION OF ATTORNEYS GENERAL, Mr. 
Hanify's talk dealt with State statutes dealing with charitable trusts and 
solicitations. Mr. O'Keefe discussed the ''Setting of Standards for 
Charitable Solicitations; Campaigns and Professional Fund Raisers." 



Some other interesting cases handled by the Division were the 
CHARLES F. BACON Trust of March 8, 1919, where the question 
arose as to whether adopted children were entitled to the Trust property 
on termination as against a charity. The Probate Judge found in favor of 
the charity and presently the adopted children are appealing his deci- 
sion. 

In another case, the Trustees of the Fellowes Athenaeum filed a peti- 
tion for dissolution and named the Attorney General and the Trustees of 
the Boston Public Library respondents. The Attorney- General assented 
to a petition whereby the Fellowes trustees turned over to the Library 
more than a half-million dollars to be held by the Library "as the Fel- 
lowes Athenaeum Fund, income therefrom to be used for literary in- 
structive purposes at its Dudley Street Branch Library." The Charity 
was organized in 1866, and its income to be used exclusively for literary, 
scientific and educational purposes. A suitable plaque in honor of 
CALEB AND SARAH FELLOWES will be placed in the new DUD- 
LEY STREET BRANCH LIBRARY. 



36 P.D. 12 



In another case the Attorney General assented to a decree modifying 
Article XXII of the will of FRANCIS AMORY relating to a gift to 
AMERICAN ACADEMY OF ARTS and SCIENCES so that the 
prize instead of being awarded every seven years, may be awarded at 
such intervals as the President and Fellows of the ACADEMY shall 
from time to time determine. One of the reasons for the change was that 
the long interval of seven years between the award of prizes results in 
less awareness of the existence of the prize. 

In the JOHN H. HORIGAN TRUST for the benefit of the BUR- 
BANK HOSPITAL we assented to a decree so that principal and ac- 
crued income may be used by the Hospital up to 1 ,200,000 to construct 
and furnish an emergency and out-patient Center on a floor of the new 
hospital wing to carry JOHN H. HORRIGAN'S name, preference as 
to services and use of the Center to be given to needy patients, the bal- 
ance of the Trust property to be retained in Trust to be used for needy 
patients in the Hospital. 

The Division has handed to the State Printing Division an up-dated 
Directory of all grant-making foundations with tables of contents making 
the identification of the appropriate foundation easy to locate. This was 
done under the direction of Attorney General Robert H. Quinn. The 
painstaking and detailed research was done by Francis L. Jung a re- 
search assistant assigned to the Division by Attorney General Quinn 
and, presently, a graduate student at the Harvard Law School. For this 
Directory, we should all be grateful. Its continuance and up-dating at 
regular period in the future has been provided for by a card system in 
the 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 58 pending Eminent Domain cases — 37 in 
Hampden, II in Hampshire and 10 in Franklin. From July I, 1973 to 
June 30, 1974 18 cases in Hampden County were settled; 2 Pro-forma 
hearings were held; 4 Trials were conducted and I case was dismissed 
for Want of Prosecution. In Hampshire County there was 1 Non-suit, 
while there were no cases in Franklin County. 



P.D. 12 37 



Listed below are other cases which have been worked on in the 
Springfield office. 

//£^f CASES VICTIM OF VIOLENT CRIMES CASES 

6 cases were completed 5 cases pending 
1 case dismissed by agreement 

14 cases pending WELFARE FRAUD CASES 

25 cases worked on and completed 
TORT CASES 

7 cases completed COLLECTION CASES 

1 case dismissed 39 cases pending 
1 1 cases pending 

PUBLIC CHARITIES ENVIRONMENTAL CASES 

2 cases completed • case completed 

3 cases pending 2 cases pendmg 

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, 1973 to June 30, 1974. 

OPENED CLOSED PENDING SAVINGS 

1592 1307 456 $250,070.05 

(The closed and pending figures include cases carried over from the 
previous year.) 

The staff also fulfills speaking engagements concerning consumer pro- 
tection. 

The office gives legal assistance to various state agencies upon re- 
quest. 

Our total correspondence on various matters other than consumer 
complaints average over 135 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 Attorney Generals, one Deputy 
Assistant Attorney General, three Special Assistant Attorney Generals, 
one investigator in Consumer Protection, one State Trooper in the Crim- 
inal Division and two secretaries. 



Torts, Claims and Collections Division 

The tort division represents officers and employees of the Common- 
wealth against whom claims are made for acts arising within the scope of 
their employment. 

These cases run the gamut of the law. We have defended employees 
charged with such offenses as assault, battery, false imprisonment, 
malicious prosecution, illegal commitments to mental institutions, libel, 



38 P.D. 12 

slander, conversion and destruction of personal property, pollution of 
streams and sources of drinking water, wrongful suspension of driver's 
license, violation of rights secured by the Constitution 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 cases involved motor vehicle accidents. During the fiscal 
year 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 
for the fiscal year 1972. 

The highway defect claims and "moral claims" disposed of in the 
fiscal year were 136 for an expenditure of $13,358.13 as compared with 
104 cases and the expenditure of $12,854.47 for the fiscal year 1972. 

The Supreme Court in the landmark decision of Morash & Sons vs. 
Commonwealth, 1973 ADV. SH. 785 in reversing the trial court, held 
that the doctrine of sovereign immunity does not bar a suit against the 
Commonwealth for injury caused to realty by the commission of a nui- 
sance. 

General Laws, Chapter 12, §4-5, authorizes the Attorney General's 
Office to collect monies due the Commonwealth. 

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

From January 1969, until June 30, 1973, the Collection Section has 
collected $2,631,389.48. This is approximately the amount collected in 
the previous eleven years. 

The type of cases handled by the Collections Section include care and 
support claims against patients of state hospitals, damage to state prop- 
erty, claims for tuition at the state colleges and universities, and subrog- 
ation claims arising out of workmen's compensation benefits paid to 
state employees. 

The following is a survey of cases involved in this phase of the 
Division's work: 



Department Involved 


Amount Received 


No. of Claims 


Department of Mental Health 


$193,369.58 


54 


Department of Public Health 


50.070.04 


111 


Department of Public Works 


118,535.45 


241 


Metropolitan District Commission 


17,338.83 


58 


Education 


5,599.43 


88 


State Colleges 


3,234.04 


34 


Welfare 


837.69 


18 


Industrial Accidents Division 


22,274.44 


11 


Office of the Secretary 


694.25 


17 


Department of Correction 


292.08 


4 


Corporations & Taxations 


43,970.82 


1 


Public Utilities 


20.00 


3 


Parole Board 


675.00 


I 


Public Safety 


3,000.00 


2 


Waterways Division 


4.213.13 


2 



904.04 


1 


592.00 


5 


650.14 


5 


122.29 


2 


144.50 


1 


775.00 


1 


6,393.20 


I 


473,705.95 


661 



P.D. 12 39 



Board of Retirement 
Natural Resources 
Administration & Finance 
Milk Control Commission 
Division of Employment Security 
Youth Services 
Aeronautics Commission 
TOTAL 

General Laws Chapter 258 A, an act providing for compensation of 
victims of violent crimes, became effective July 1, 1968. The office of 
the Attorney General has the responsibility of investigating and report- 
ing upon such claims to the District Courts of the Commonwealth. All 
claims are based on out-of-pocket losses of the victims. 

In 1968 this office received fifty-five petitions from victims and nine 
claims were adjudicated with total awards amounting to $4,498.58. Pres- 
ently the office of the Attorney General receives thirty petitions per 
month. In fiscal year 1974 alone, 351 claims were completed with 
awards totaling over $600,000.00 

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

In a case of first impression under the Violent Crime Statute, the Sup- 
reme Court in Giirley vs. Commonwealth, 1973 Mass. ADV. SH. 769, 
virtually assured the dependents of a victim of a violent crime who dies 
as a result thereof, that they would recover the maximum award of 
$10,000.00 

Under the authority of Mass. General Laws, c.l68, §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. 

It was the first time that a complete search was made in every probate 
court in the State. Some bank books have been on file for 100 years. In 
Worcester, a $3.00 deposit made in 1870 grew with interest to $93.00. 

The State Treasurer has, in fiscal, year 1974, 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 



40 P.D. 12 

FISCAL YEAR REPORT 

July 1, 1973 -June 30, 1974 

# of cases pending at beginning of fiscal year 1,256 

# of new cases 553 

# of cases closed 335 

# of cases pending at end of fiscal year 1 ,474 

Motor Tort 

# MT Cases disposed 167 
Total claimed on MT $214,023.69 
Total paid on MT 131,343.47 
Average amt. paid on MT $ 779.90 
Moral Claims 

# Moral Claims disposed 102 
Total claimed on Moral Claims $ 9,727.17 
Total paid on Moral Claims 8,016.42 
Average amt. paid on Moral Claims $ 78.59 
Defect Claims 

# Defect Claims disposed 35 
Total claimed on Defect Claims $ 9,753.17 
Total paid on Defect Claims 8,766.29 
Average amt. paid on Defect Claims $ 250.47 
Deer Claims 

# Deer Claims disposed 11 
Total claimed on Deer Claims $ 5,068.81 
Total paid on Deer Claims 2,730.29 
Average amt. paid on Deer Claims $ 248.21 
Misc. Tort Claims 

# Misc. Tort Claims disposed 5 
Total Claimed on Misc. Tort $ 18,165.67 
Total paid on Misc. Tort 1 1 ,800.00 
Average amt. paid on Misc. Tort Claims $ 2,360.00 



P.D. 12 



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42 P.D. 12 



Number I July 9, 1973 

His Excellency Francis W. Sargent 

Governor of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Governor Sargent: 

You have requested my opinion as to the constitutionality of H-6966, 
"AN ACT PROVIDING THAT CERTAIN HOSPITALS AND 
HEALTH EACH ITiES SHALL NOT BE REQUIRED TO ADMIT 
PATIENTS FOR CERTAIN PURPOSES NOR TO FURNISH 
FAMILY PLANNING SERVICES AND THAT CERTAIN MED- 
IC AL PERSONNEL SHALL NOT BE REQUIRED TO PARTICI- 
PATE IN C ERTAIN MEDICAL PROCEDURES. You have advised 
mc that the bill has passed both houses of the General Court and is now 
before you for your approval. In light of the recent Supreme Court deci- 
sions. Doe V. Bolton, 409 U.S 93 S. Ct. 705 (1973) and Roe v. 

Wade. 409 U.S 93 S. Ct. 739 (1973), and two decisions by in- 
ferior federal courts, I am of the opinion that the bill would be constitu- 
tional if enacted into law. 

The bill would give legal protection to all hospital personnel, who by 
reason o^ religious and/or moral convictions, choose not to become in- 
volved in sterilization and abortion procedures. The bill would also grant 
to each privately controlled hospital or other health facility the right to 
establish a policy not to admit for, or permit patients to obtain, abortions 
or sterilizations and not to provide contraceptive devices or information. 
The bill further allows such hospitals or facilities to choose not to make 
available family planning services or to make referrals for such services 
— when offering such services is in violation of the religious or moral 
principles of the hospital or health facility. The bill would give to each 
privately controlled hospital the right to determine its own policy with 
reference to such services; it would not require any hospital, presently 
providing abortions and sterilizations or contraceptives or family plan- 
ning services, to cease offering such services. 

The recent Wade and Bolton decisions of the Supreme Court o^ the 
I'nited States ht>ld that the right to make the abortion decision is one 
protected by the Fourteenth Amendment. A statute which makes the 
performance of an abortion a crime. Roe v. Wade, supra, or which re- 
quires the medical profession to observe unnecessary abortion- 
restricting rules. Doe v. Bolton, supra, is thus invalid. Yet, the exist- 
ence of the right is not a declaration that private hospitals or other pri- 
vate health facilities must provide abortions. [The public-private distinc- 
tion as to the institution removes from the present consideration the 
First Circuit's decision in Hathaway v. Worcester City Hospital. 475 
l-.2d 701 (1973). There, the C ourt ruled that a prohibition imposed with 
respect to a city hospital barring the use of its facilities in connection 
with any consensual sterilization violated the Equal Protection Clause 
and amounted to an attempt at an all-encompassing anti-birth control 



P.D. 12 43 



policy, which was suspect under the guidelines of the Wade and Bolton 
decisions. That decision was not further appealed.] 

The Georgia abortion statute which was considered by the Supreme 
Court in Bolton contained a provision somewhat similar to that found in 
H-6966: 

■'Nothing in this section shall require a hospital to admit 
any patient under the provisions hereof for the purpose of 
performing an abortion, nor shall any hospital be required to 
appoint a committee such as contemplated under subsection 
(h) (5). A physican, or any other person who is a member of 
or associated with the staff of a hospital, or any employee of 
a hospital in which an abortion has been authorized, who 
shall state in writing an objection to such abortion on moral 
or religious grounds shall not be required to participate in the 
medical procedures which will result in the abortion, and the 
refusal of any such person to participate therein shall not 
form the basis of any claim for damages on account of such 
refusal or for any disciplinary or recriminatory action against 
such person."" Criminal Code of Georgia, Chapter 26-1202 
(e). 

The Supreme Court did not expressly pass on the validity of the 
above-quoted section, but the Court reviewed the entire statute, and I 
note that the section was attacked in an amicus brief submitted to the 
Court. A reasonable inference can be drawn, that such a provision was 
not considered unconstitutional, in my opinion. 

In discussing the statutory requirement of approval for abortions, the 
Court stated. "These provisions obviously are in the statute in order to 
afford appropriate protection to the individual and to the denominational 
hospital." 41 U.S.L.W. 4238-39. The bill which is presently before Your 
Excellency for approval is broader than the earlier draft reported out by 
the Committee on Social Welfare. That draft, in Section 3. referred to 
health facilities operated by and under the direction of a recognized re- 
ligious order or group. Nevertheless, the principle as applied to indi- 
viduals is the same in either draft. 

Several courts have ruled on or have cases pending as to the constitu- 
tionality of a private hospital prohibiting its facilities to be used for the 
performance of abortions. At the present time, the U. S. Court of Ap- 
peals for the First Circuit has neither decided nor has such a case pend- 
ing. The United States Court of Appeals for the Seventh Circuit, in Doe 

V. Bellin Memorial Hospital F.2d No. 73-C-230 (June 1, 

1973). held that the defendant hospital, regulated by the State of Wis- 
consin and having accepted financial support pursuant to the Hill-Burton 
Act. 42 U.S.C. § 291, could refuse to perform abortions without offend- 
ing the Civil Rights Act. 42 U.S.C. § 1983. The Court noted that the 
hospital was operating under rules restricting abortions to cases (1) 
where pregnancy would seriously threaten the health or life of the 
mother, (2) or would result in delivery of an infant with grave and ir- 



44 P.D. 12 



reparable physical deformity or mental retardation, or (3) if the pre- 
gnancy had resulted from legally established rape or incest. The Court 
stated, after distinguishing the Bellin Hospital situation from a public in- 
stitution, "There is no constitutional objection to a state statute or pol- 
icy which leaves a private hospital free to decide for itself whether or 
not it will admit abortion patients or to determine the conditions on 
which such patients will be accepted." (Slip Opinion, p. 7). The opinion 
rejected the plaintiffs contention that the hospital's right to make that 
decision had been limited by two federal statutes, the Hill-Burton Act 
and section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983. 
The Court stated: "There is no evidence, however, that any condition 
[in the obtaining of Hill-Burton funds], related to the performance or 
non-performance of abortions . . . We find no basis for concluding that 
by accepting Hill-Burton funds to the hospital unwittingly surrendered 
the right it otherwise possessed to determine whether it would accept 
abortion patients." (Slip Opinion, p. 8). Neither the direct financial sup- 
port received from both the federal and state governments, nor the de- 
tailed regulation of the hospital by the state was sufficient to bring the 
hospital's conduct within the ambit of § 1983. 

In an unreported decision, Taylor et al. v. St. Vincent's Hospital, 
Docket No. 1090 (Nov. 1, 1972),' the United States District Court for 
the District of Montana, in considering the defendant hospital's prohibi- 
tion of sterilization procedures absent serious medical indications, 
treated the same Hill-Burton and § 1983 problem, reaching a different 
conclusion. The Court granted the plaintiffs motion for an injunction 
forbidding the denial to the plaintiff, and her physician or physicians, the 
use of defendant's facilities for the performance of a tubal ligation con- 
temporaneously with a Caesarian section, and the Court also denied a 
motion to dismiss the complaint for lack of jurisdiction. (The order 
granting injunctive relief is now on appeal to the U. S. Court of Appeals 
for the Ninth Circuit and is sub judice before that Court.) The District 
Court held "that where a hospital in this state [Montana] is or makes 
itself the exclusive source of services, and where it benefits from the re- 
ceipt of Hill-Burton Act funds, it necessarily acts under color of law for 
purposes of jurisdiction under 42 U. S. C. § 1983." 

In this same context I also note that P. L. 93-45 was recently enacted. 
It provides that receipt of federal funds by any individual or entity does 
not authorize any court, public official or public authority to require in- 
dividuals or entities to perform or make facilities available for the per- 
formance of abortions or sterilizations if such procedures are contrary to 
the religious beliefs or moral convictions of the individuals or entities. 

In considering these two decisions and their relation to H-6966, sev- 
eral factors should be emphasized. First, the decisions were reached in 
the context of adversary proceedings where the statutes were applied to 
concrete factual settings. Particularly, the Taylor case presented a situa- 
tion where the hospital, by its own volitional acts, had become the single 
institution in the area equipped to provide the maternity and post-natal 
services which the plaintiff sought. The Court itself in a footnote allows 



P.D. 12 45 

for the possibility of a different result if the plaintiff had been able to 
obtain reasonable alternative services. Your request for my opinion is, 
of course, not predicated on any factual basis. The proposed statute is 
before me for an opinion as to its facial constitutionality. As previously 
indicated, I am therefore of the opinion that the bill, if enacted into law, 
would be constitutional. 

Very truly yours. 

ROBERT H. QUINN 

Attorney General 



Number 2 July 17, 1973 

Honorable James M. Shepard, Director 

Division of Fisheries and Game 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Shepard: 

You have requested my opinion with respect to whether you, as Di- 
rector of the Division of Fisheries and Game, have authority to require 
on applications for antlerless deer hunting permits the statement: 'T cer- 
tify under the pains and penalty of perjury that this is the only antlerless 
deer permit application being submitted by this applicant." 

You have advised me that since 1967 your Division has, through a 
regulatory system, established antlerless deer hunting. You indicate that 
in establishing a procedure for selecting permits, a computer card was 
chosen with an application to be filled out by an individual and a tear-off 
section for the actual issuance of the permit. You further advise me that 
to avoid an individual submitting many applications, thereby increasing 
his chances of receiving a permit, you had the statement quoted above 
included on the application. 

By virtue of G. L. c. 131, § 5, the Director is given statutory authority 
to regulate the open season on antlerless deer hunting. Inherent in this 
regulatory power is the authority to prescribe appropriate procedures 
concerning the application and selection process in issuing permits. 

General Laws, c. 131, § 32 provides that ''A person shall not falsely 
make any representation or statement for the purpose of procuring any 
. . . permit . . . for himself or another.'' 

General Laws, c. 131, § 33 provides that "A person shall not . . . pro- 
cure or attempt to procure a . . . permit ... by fraud or false statements 
of any kind . . ." 

Since you, as Director, are the official given authority over the antler- 
less deer hunting permit selection process, and in light of G. L. c. 131, 
§§ 32 and 33 outlawing the obtaining of permits in a fraudulent manner, 
there appears no sound reason why you would lack authority to require 
the statement in question. In addition, it is noteworthy to mention G. L. 



46 p.D. 



c. 131, § 12, by which the Legislature has authorized you to require data 
and statements under the penalty of perjury in regards to your authority 
to issue licenses. There appears to me no valid reason why such author- 
ity would be given you concerning the issuance of licenses but denied 
regarding antlerless deer hunting permits. 
Accordingly, I answer your inquiry in the affirmative. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 3 July 17, 1973 

Honorable George G. Burke 
District Attorney for the 

Norfolk District 
Superior Court House 
Dedham, Massachusetts 02026 

Dear Mr. District Attorney: 

You have requested my opinion with respect to the powers of the 
police in relation to G. L. c. 11 IB, which went into effect July 1, 1973. 
First, you indicate concern with the arrest and search powers of police 
officers who arrive at the scene of an automobile accident and find that 
one or more of the parties involved have apparently been operating a 
motor vehicle under the influence of an intoxicating liquor, a mis- 
demeanor. Until the present, as you note in your request, the police 
could only arrest a person for a misdemeanor committed in their pres- 
ence, and under this rule, the provisions of G. L. c. 11 IB would pre- 
clude the arrest of a person for driving under the influence of intoxicat- 
ing liquor or driving to endanger until a warrant or a complaint issues 
from a district court, since drunkenness is no longer a misdemeanor. 
Such a situation, in effect, would negate the breathalyzer provisions of 
the General Laws, as well as the right to search pursuant to a lawful 
arrest under those circumstances. 

However, the situation you posit has been rectified by c. 461 of the 
Acts of 1973 which revised G. L. c. 90, § 21 to insert the following pro- 
vision which took effect on July 1, 1973: 

"Any officer authorized to make arrests may arrest without 
warrant and keep in custody for not more than twenty-four 
hours, unless Sunday intervenes, any person operating a 
motor vehicle on any way who does not have in his posses- 
sion a license to operate motor vehicles granted to him by the 
registrar, and who violates any statute, by-law, ordinance or 
regulation relating to the operation or control of motor vehi- 
cles and any officer authorized to make arrests, provided 
such officer is in uniform or conspicuously displaying his 
badge of office, may arrest without warrant any person, re- 
gardless of whether or not such person has in his possession a 



P.D. 12 47 



license to operate motor vehicles issued by the registrar, if 
such person upon any way or in any place to which the public 
has the right of access, or upon any way or in any place to 
which members of the public have access as invitees, oper- 
ates a motor vehicle after his license or right to operate motor 
vehicles in this state has been suspended or revoked by the 
registrar, or whoever upon any way or place to which the 
public has the right of access, or upon any way or in any 
place to which members of the public have access as invitees, 
or who the officer has probable cause to believe has operated 
or is operating a motor vehicle while under the influence of 
intoxicating liquor, marijuana or narcotic drugs, or depressant 
or stimulant substances, all as defined in section one of chap- 
ter ninety-four C, or under the influence of the vapors of 
glue, carbon tetrachloride, acetone, ethylene, dichloride, tol- 
uene, chloroform, xylene, or any combination thereof . . ." 
This amendment gives a policeman the power to arrest any person he 
has probable cause to believe is operating or did operate a motor vehicle 
while under the influence of intoxicating liquor, marijuana or narcotic 
drugs, or depressant or stimulant substances, if he is in uniform or con- 
spicuously displays his badge of office. In view of the revision, it is un- 
necessary for me to answer your question relating to search and towing 
of the arrested person's motor vehicle. 

Secondly, you request an opinion relative to the maintaining of re- 
cords of persons held in "protective custody" pursuant to G. L. c. 
II IB, and whether or not such records could be used in a subsequent 
criminal action or civil suit arising out of the incident which resulted in 
the person being held in protective custody, and whether or not they are 
to be considered public records. General Laws, c. 11 IB, has the follow- 
ing provision which took effect July I, 1973: 

'*A person assisted to a facility or held in protective cus- 
tody by the police pursuant to the provisions of this section, 
shall not be considered to have been arrested or to have been 
charged with any crime; however, an entry of custody shall 
be made indicating the date, time, and place of custody, 
which record shall not be treated for any purposes as an ar- 
rest or criminal record." G. L. c. 1 1 IB, § 8. 
It is my opinion that the record cannot be treated for any purpose as 
an arrest or criminal record, in any subsequent criminal action or civil 
suit. Whether or not it can be introduced for any other purpose will be 
based upon the facts of the case and the relevance and materiality of the 
records to the issue before the court. Concerning whether such records 
are public, G. L. c. 4, § 7 provides in part: 

" 'Public Records' — Twenty-sixth, 'Public Records' shall 
mean any written or printed book or paper, any map or plan 
of the commonwealth, or of any county, district, city, town 
or authority established by the general court to serve a public 
purpose, which is the property thereof, and in or on which 



48 P.D. 12 



any entry has been made or is required to be made by law." 
A recent decision of the Supreme Judicial Court, Town Crier Inc. and 
Others v. Chief of Police of Weston, Massachusetts, 1972 Adv. Sh. 891, 
895, interpreting the above statute, stated: 

"The proper construction of G. L. c. 4, § 7. Twenty-sixth, 
in our view is that the two categories of records encompassed 
by the definitions are (a) those in which 'any entry has been 
made . . . [pursuant to a legal requirement]' and (b) those in 
which 'any entry ... is required to be made by law,' . . ." 
It is my opinion that records maintained pursuant to G. L. c. 1 1 IB, § 
8 are public records, since an entry of custody indicating the date, time, 
and place of custody is to be maintained as "required to be made by 
law," namely, G. L. c. 1 1 IB, § 8. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 4 July 26, 1973 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Mr. Secretary 

Mr. Edward C. Kloza, State Registrar of Vital Statistics within your 
office, has requested my opinion on the effect of the new legislation al- 
lowing males between the ages of 18 and 21 to marry in Massachusetts 
without parental consent, G. L. c. 207, §§ 7, 33 and 33A, as amended by 
St. 1971, c. 255. The questions presented are: 

"1. May a person between the ages of eighteen and 
twenty-one, whose parents reside in a state other than the 
Commonwealth, establish a residence within the Common- 
wealth for the purpose of obtaining a marriage license as per 
Chapter 207, Section 19 of the General Laws? 

"2. If the answer to the first question is in the negative, do 
the laws of the state in which the parents reside apply with 
respect to any requirements of parental consent?" 
The Massachusetts statutes in question here, G. L. c. 207, §§ 7, 33 
and 33A, are applicable to Massachusetts domicilaries. A person must 
be a domiciliary to have the marriage laws of the state apply. See Re- 
statement — Conflict of Laws, § 132. A person, domiciled in another 
state, who comes to Massachusetts to marry is subject to the marriage 
laws of his domiciliary state. G. L. c. 207, §§ 11 and 12. 

In general, "domicil" means actual residence, coupled with an inten- 
tion to remain indefinitely. See Putnam v. Johnson, 10 Mass. 487, 
500-501; Opinion of the Justices, 5 Met. 587, 590; Rummel v. Peters, 



P.D. 12 49 

314 Mass. 504, 511. The intention to remain indefinitely does not mean 
an intention to stay forever, but merely that there is no present intention 
of leaving. Putnam v. Johnson, supra; Rummel v. Peters, supra. 

In Massachusetts the age of majority is 21. A legitimate minor child is 
ordinarily domiciled with his father or guardian. See Green v. Green, 
351 Mass. 466, 467-468; Glass v. Glass, 260 Mass. 562, 564; Worcester 
V. Springfield, Ml Mass. 540, 541; Restatement-Conflict of Laws, § 31. 
An emancipated minor may establish his own domicil separate from that 
of his father or guardian. Restatement-Conflict of Laws, §31. An un- 
emancipated minor may only establish his own domicil with the assent, 
express or implied, of his parents or guardian. See Kirkland v. Whately, 
4 Allen 462. Traditionally, without the consent of his parents, an un- 
emancipated minor may not establish his own domicil until he reaches 
the age of majority. See Green v. Green, supra: Glass v. Glass, supra; 
Worcester v. Springfield, supra; Restatement-Conflict of Laws, § 31. If 
these domicil principles were to apply to marriage, an unemancipated 
minor between the ages of 18 and 21 would be restricted to marrying in 
conformity with the laws of the state of his father's or guardian's 
domicil. See G. L. c. 207, § 12. 

However, the rules pertaining to domicil change for different pur- 
poses. They are, for instance, different for property tax liability, probate 
jurisdiction of wills, custody of children and voting.' Marriage is a status 
and, as such, for conflict of laws purposes, is governed by the laws of 
the domicil of the party or parties. Restatement-Conflict of Laws, § 121. 
In enacting legislation, Massachusetts can change the status of only its 
own domiciliaries; otherwise it must adhere to the laws of the 
domiciliary state, G. L. c. 207, § 12, or the marriage is void, G. L. c. 
207, § 11. The purpose of the domicil requirement is to establish the 
superiority of one state's laws as against another's concerning the mar- 
riage. 

In my opinion, to restrict the ability of an unemancipated minor, over 
the age of 18, to choose his domicil for marriage purposes, but not re- 
strict him for voting purposes serves no useful purpose and is uncon- 
stitutional. See Op. Atty. Gen., 11/12-3. The new 18 to 21 year old resi- 
dent would be put in a separate category from the lifelong resident. The 
lifelong resident is permitted to establish a separate domicil from his 
father or guardian for marriage and voting purposes, whereas the new 
resident would be denied the right to establish a separate domicil for 
marriage purposes. Such a classification has no rational basis, cannot be 
justified by a compelling governmental interest and constitutes invidious 
discrimination in violation of the Fourteenth Amendment's Equal Pro- 
tection Clause. It could also act as a restriction on the freedom to travel 
and establish a new domicil. See U.S. v. Guest, 383 U.S. 745; Shapiro 
V. Thompson, 394 U.S. 618; Dunn v. Blumstein, 405 U.S. 330; Opinion 
of the Justices, 357 Mass. 827. 

In conclusion, a male between the ages of 18 and 21, whose parents 
reside in a state other than the Commonwealth, may establish a domicil 

'See e.g.. Ti:\ii.\ v. FloiUla. 306 U.S. .■«98. 413-428. Op. Ally. (icn.. 71^72-3. p. 3-6. 



50 P.D. 12 

within the Commonwealth for the purpose of contracting marriage. The 
determination whether a person between the ages of 18 and 21 has made 
his new Massachusetts residence his domicil for marriage purposes is a 
question of fact to be determined by all the circumstances of the case. 
Commonwealth v. Davis, 284 Mass. 41, 49; Tax Collector of Lowell v. 
Hanchett, 240 Mass. 557, 561. 

In view of my answer to the first question, no answer is required as to 
the second. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 5 August 2, 1973 

Honorable Wallace C. Mills, Clerk 

House of Representatives 

State House 

Boston, Massachusetts 02133 

Dear Mr. Mills: 

The House of Representatives has requested my opinion (House No. 
6799) on the question: "Would House Bill 5233, entitled 'An Act to 
stimulate the economy through business and industrial financial assis- 
tance' if passed, violate any provisions of the Constitution of the Com- 
monwealth or of the United States?" 

House Bill 5233 provides for the creation of a "Board of Business As- 
sistance Approval" (hereafter "the Board") within the Department of 
Commerce and Development consisting often members, five of whom 
are public officials specified by the bill and five appointed by the Gover- 
nor to serve at his pleasure (subsections 14 and 15 of section 7). The 
declared purpose of the bill is "to protect the public welfare by reducing 
the high level of unemployment, lessening the number of people on wel- 
fare rolls and increasing income tax revenues for the Commonwealth by 
encouraging lending institutions to extend credit to those industries and 
businesses which may preserve or create jobs for the people of the 
commonwealth." To this end, the bill provides for the establishment of 
a "mortgage guarantee fund" (subsection 19 of section 8), a "business 
loan guarantee fund" (subsection 25 of section 9), and a "capital partici- 
pation loan fund" (subsection 29 of section 10). Additionally, the Board 
is authorized to borrow money by issuing revenue bonds for the purpose 
of financing industrial projects within the Commonwealth of Massachu- 
setts (subsection 33 of section 1 1). 
I. Public Purpose 

House Bill 5233 appropriates public money for the mortgage guarantee 
fund (section 13), the business loan guarantee fund (section 14) and the 
capital participation loan fund (section 15). Public money is money 
raised by Taxation. Opinion of the Justices, 354 Mass. 779, 784 (1968). 



P.D. 12 51 



Since it is a long-established principle of constitutional law that public 
money can be used only for a public purpose and not for the advantage 
of private individuals. Opinion of the Justices, 337 Mass. 800 (1958); 
Eisenstcult v. County of Suffolk, 331 Mass. 570 (1954); Opinion of the 
Justices, 261 Mass. 523 (1927); Duffy v. Treasurer and Receiver 
General, 234 Mass. 42 (1919); Lowell \'. Boston, 111 Mass. 454 (1873), 
House Bill 5233 raises the question whether the expenditure of public 
funds is hereby authorized for other than a public purpose. 

Such a determination depends upon the circumstances of each particu- 
lar case. Opinion of the Justices to the Senate and House of 
Representatives, 341 Mass. 738 (1960), with the paramount test being 
whether the expenditure confers direct public benefit of a reasonably 
general character to a significant part of the public, as distinguished from 
a remote and theoretical benefit. Opinion of the Justices, 349 Mass. 794 
(1965); Opinion of the Justices, 347 Mass. 797 (1964); Opinion of the 
Justices, 337 Mass. 777 (1958). Thus, where the Commonwealth pro- 
vides assistance to or utilizes a private individual or enterprise in aid of a 
valid public objective, such a scheme is not rendered unconstitutional 
simply because that private person or institution receives some 
incidental advantage or benefit which is secondary to the accomplish- 
ment of the predominant public purpose of the plan. Opinion of the 
Justices, 356 Mass. 814 (1971); Opinion of the Justices, 354 Mass. 779 
(1968); Massachusetts Bay Transportation Authority v. Boston Safe 
Deposit and Trust Co., 348 Mass. 538 (1965); Allydonn Realty Corp. v. 
Holyoke Housing Authority, 304 Mass. 288, 292-293 (1939). And it has 
been declared that weight should be given to legislative findings of fact 
as to existing conditions material in such a determination. Opinion of the 
Justices, 349 Mass. 794 (1965); McLean v. City of Boston, 327 Mass. 
1 18 (1951) (legislative finding of public emergency not met by way of or- 
dinary private action); Opinion of the Justices, 320 Mass. 773 (1946). 

It is my opinion, in light of the stated purpose of the bill and the reci- 
tation of legislative findings of fact as to the high unemployment rate in 
the Commonwealth, that the passage of this bill would not entail an un- 
constitutional expenditure of public funds, and would benefit a signifi- 
cant part of the public. 

The Justices of the Supreme Judicial Court, in Opinion of the 
Justices, 356 Mass. 814 (1971), have held that a statute authorizing the 
Commonwealth to borrow money and to lend such money to private 
businesses for construction of water pollution waste treatment facilities 
did not involve the expenditure of public funds for other than a public 
purpose where the purpose of the statute was the abatement of industrial 
water pollution. The Justices relied upon findings by the Legislature that 
such pollution constituted an obvious danger to public health, safety and 
welfare, and determined that any benefits received by recipients of loans 
would be incidental to the accomplishment of the primary purpose of the 
act. It is my opinion that the instant bill encouraging lending institutions 
to extend credit to certain private industries and businesses which may 
preserve or create jobs for the people of the Commonwealth involves a 



52 P.D. 12 

scheme comparable to the water pollution waste treatment plan, and a 
similar determination as to public purpose is warranted. 

Moreover, Art. 88 of the Articles of Amendment to the Constitution 
of the Commonwealth provides that "The industrial development of 
cities and towns is a public function and the cities and towns therein 
may provide for the same in such manner as the general court may de- 
termine." See, Opinion of the Justices. 356 Mass. 814 (1971) (abatement 
of industrial water pollution without impairment of local industrial de- 
velopment involves an important public purpose). 

Finally, the bill contains language designed to insure that the public 
interest prevails over the private. Subsection 24 of section 9 requires 
that the Board may enter into a business loan guarantee agreement only 
if "the borrower can establish to the satisfaction of the Board that jobs 
will be created or preserved through the availability of financial assis- 
tance." An identical provision is included in subsection 28 of section 10 
pertaining to capital participation loan agreements. As to the Board's au- 
thority to issue revenue bonds under section 1 1 , although it is my opin- 
ion that this is not an expenditure of public funds or an extension of pub- 
lic credit, still subsection 36 includes language which further indicates 
the intention of the Legislature that the bill be primarily for the benefit 
of the public. 

The only provision that appears constitutionally questionable on a 
public purpose ground is that regarding mortgage guarantee agreements, 
since this section does not include any of the language to which I have 
referred. It is possible that a court would interpret this omission as sig- 
nifying a different intention on the part of the Legislature and thus de- 
clare it constitutionally invalid. 
IL Credit of the Commonwealth 

Article 62, §1 of the Articles of Amendment to the Constitution of 
Massachusetts (as amended by Art. 84 of the Amendments) provides 
that: "The commonwealth may give, loan or pledge its credit only by a 
vote taken by the yeas and nays, of two-thirds of each house of the 
General Court present and voting thereon. The credit of the common- 
wealth shall not in any manner be given or loaned to or in aid of any 
individual, or of any private association, or of any corporation which is 
privately owned and managed." (Emphasis supplied.) House Bill 5233 
involves the guaranty of loans made by lending institutions to industries 
and businessess in the Commonwealth which are unable to secure such 
loans without state assistance through the mortgage guarantee fund, the 
business loan guarantee fund, and the capital participation loan fund. In 
addition, the Board is authorized to borrow money. 

Since it has been decided that a guaranty by the Commonwealth is a 
loan of the credit of the Commonwealth, Opinion of the Justices, 337 
Mass. 800 (1958). as is borrowing and lending of money. Opinion of the 
Justices, 356 Mass. 814 (1971), House Bill 5233 raises a question con- 
cerning potential violation of Art. 62, § 1 of the Articles of Amendment 
to the Constitution of Massachusetts. 



P.D. 12 53 



However, it is my opinion that there is no loan or pledge of the credit 
of the Commonwealth on the face of this bill, Massachusetts Bay 
Transportation Authority v. Boston Safe Deposit and Trust Co., supra, 
except with regard to the capital participation loan provision. In section 
8 of the bill, creating the mortgage guarantee fund, there is very specific 
language in subsection 20 to the effect that "the total amount of the debt 
service obligation payable on account of all loans to all mortgagors 
which are subject to mortgage loan guarantee agreements shall not ex- 
ceed the amount of the mortgage fund." And in subsection 22 it is 
clearly stated that an "obligation shall be payable solely from the mort- 
gage guarantee fund and shall not constitute a pledge of the taxing power 
or the faith and credit of the commonwealth." Similar language restricts 
the business loan guarantee provisions (subsections 23 and 26 of section 
9) and the power to issue revenue financing bonds (subsections 30 and 
34 of section II). The Board thus may not become obligated beyond its 
own resources, and may not in any way rely upon the credit of the 
Commonwealth. Statutory language of this type has been interpreted by 
the courts to effectively withhold commitment of the state's credit and 
thus comply with the requirements of Art. 62, § 1 of the Articles of 
Amendment to the Constitution of Massachusetts. See, Massachusetts 
Housing Finance Agency v. New England Merchants National Bank, 
356 Mass. 202 (1969); Opinion of the Justices, 354 Mass. 779, 779-81 
(1968).' 

Therefore, it is my opinion that the powers given the Board do not 
involve an unlawful pledge of the credit of the Commonwealth or an un- 
lawful delegation of authority in violation of Art. 62, § 1 of the Articles 
of Amendment to the Constitution of Massachusetts, except with regard 
to the capital participation loan provisions where no disclaimer is in- 
cluded. Here again, omission may be interpreted as notice of a different 
intention. 
in. Borrowing Power 

Article 62, § 3 of the Articles of Amendment to the Constitution of 
Massachusetts declares that: "In addition to the loans which may be 
contracted as before provided, th^ commonwealth may borrow money 
only by a vote, taken by the yeas and nays, of two-thirds of each house 
of the general court present and voting thereon. The governor shall re- 
commend to the general court the term for which any loan shall be con- 
tracted." (Emphasis supplied.) Since House 5233 would authorize the 
Board to borrow money, it raises the question of unlawful delegation of 
power by the Legislature to the Board on matters of borrowing money. 
The issue turns upon whether the Board has a "substantive existence 
independent of the Commonwealth" so that borrowing by it does not 
constitute borrowing by the Commonwealth. Opinion of the Justices, 
354 Mass. 779, 785 (1968); Massachusetts Bay Transportation Authority 
V. Boston Safe Deposit and Trust Co., supra; Opinion of the Justices, 
334 Mass. 731 (1956); Opinion of the Justices, 322 Mass. 745 (1948). 

'I nole th;il one case. A\ci v. Cuiiiiiuwidiii-r oj Ailniini'.liiiuon. 140 Mass. 5X6 (1960). slalcd hy way of dicia thai "the 
Act provides that the bonds shall not constitute a deht of the ( ommonwealth or a pledge of its faith or credit. (§ 14). 
This disclaimer is ineffective if. contrary to the disclaimer, such he the natural and reasonable effect of the statute." 
However. I find no reason to believe, on the face of the bill, that the disclaimer \\ill he ineffective. 



54 P.D. 12 



It is my opinion that the Board of Business Assistance Approval 
would, in effect, have an independent existence of its own, and that bor- 
rowing by it would not constitute borrowing by the Commonwealth of 
Massachusetts. Borrowing of money would be done by the Board which 
would be primarily liable for the payment of all its notes and bonds and 
all loans incurred by it (subsection 34 of section 1 1). See, Opinion of the 
Justices, 322 Mass. 745 (1948). The Commonwealth incurs no liability 
from dealings of the Board. Moreover, what the Supreme Judicial Court 
said about the independent status of housing authorities in 
Johnson-Foster Co. v. D'Amore Construction Co., 314 Mass. 416, 419, 
seems applicable here as well: 

"The statutes establishing housing authorities make it plain 
that such an authority, although organized by and in each city 
and town in cooperation with the State, is nevertheless, when 
organized, a complete corporate entity in itself, distinct from 
the municipal corporation within whose territory it is set up, 
and exercising its powers in its own independent right. ... It 
is an instrumentality of government, but it is also a corpora- 
tion having the contracting powers of a corporation and su- 
able as such 'in the same manner as a private corporation.' 
... Its contracts are its own and are not those of the munici- 
pality." 
In a similar manner the Board of Business Assistance Approval, al- 
though established by the Commonwealth, will have a genuine existence 
of its own which is distinct from the existence of the Commonwealth. It 
has the power to make contracts and own property which cannot accu- 
rately be said to be property of the Commonwealth (subsection 30 of 
section 11). Opinion of the Justices, 322 Mass. 745 (1948). The Board 
must pay all its obligations without the assistance of the Commonwealth 
or its credit. I have noted that the Supreme Judicial Court has recog- 
nized the independent status of certain governmental instrumentalities 
even where the State did extend its credit to guarantee bonds and loans 
made by the agency. Opinion of the Justices, 354 Mass. 779 (1968) 
(Massachusetts Educational Facilities Authority); Massachusetts Bay 
Transportation Authority v. Boston Safe Deposit and Trust Co., supra; 
Opinion of the Justices, 322 Mass. 745 (1948) (Financing of low rent 
housing projects for war veterans). Finally, the Board has not been set 
up "as merely colorable entities or as a subterfuge to evade the provi- 
sions of Art. 62, § 3, and to enable the Commonwealth to borrow money 
without the two-thirds vote of each house and the recommendation of 
the Governor required by section 3." Opinion of the Justices, 322 Mass. 
745 (1948); Ayer v. Commissioner of Administration, supra. It is the 
Board which decides to borrow money and how that money should be 
used. 

Thus I must agree with the statement of the Justices of the Supreme 
Judicial Court when they declared, regarding the status of housing au- 
thorities in Opinion of the Justices, 322 Mass. 745 (1948), that to say 
that the Commonwealth would be borrowing money under this bill 
"would involve a failure to recognize the true relations intended to be 



P.D. 12 55 



brought about and would extend the word 'borrow" beyond its natural 
signification as used in Art. 62. § 3." 

Although it is my opinion that House 5233 does not violate the intent 
of Art. 62, § 3 of the Amendments to the Constitution of Massachusetts, 
there is language, however, in the bill that might be construed by a court 
as indicative that the Board does not constitute an independent entity. 
In particular, 1 note that the Board of Business Assistance Approval is 
"created and placed in the department of commerce and development," 
(subsection 14 of section 7) and that it acts "for and on behalf of the 
commonwealth" (subsection 18 of section 8, subsection 23 of section 9. 
and subsection 27 of section 10). Such language draws into doubt the 
substantive independence of the Board, and, in my opinion, weakens the 
bill from a constitutional standpoint. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 6 August 9, 1973 

Honorable William F. McRell 
Acting Director of Civil Service 
294 Washington Street 
Boston, Massachusetts 02108 

Dear Mr. McRell; 

I have your letter dated July 1 1 , 1973, calling my attention to St. 1973, 
c. 320, and requesting my opinion on the following questions: 

"1. On what date does the act take effect? 

"2. Which of the following would be a correct interpretation and im- 
plementation by the Division of Civil Service? 

a) Any examination administered prior to that date is subject to 

the rights of appeal in existence prior to the effective date of 
ch. 320, and the process of review and appeal is to be carried 
through to its completion regardless of date. 

b) Only examinations marked prior to the effective date are sub- 
ject to the right of appeal, carried to completion as in (a) 
above. 

c) Only if applicants have been informed of their marks prior to 

the effective date do they have the right of appeal as in (a) 
above. 

d) Only if a request for review has been filed, in accordance with 

the present provisions of ch. 31, prior to effective date, may a 
person exercise the present right of appeal. 

e) All review and appeal rights which are abolished by ch. 320 

are terminated as of the effective date, regardless of the stage 
they reached in the review and appeal process. 



56 P.D. 12 



"3. If none of the above is a correct construction, what construction 

shall be placed upon this act?" 
St. 1973, c. 320 amends various sections of G. L. c. 31, the Civil Ser- 
vice Law, the principal change being an elimination of the right of an 
applicant to request a review of the markings of his examination paper. 
General Laws, c. 31, §§ 2(b), 2A(7) and 12A, in relevant part, provided 
as follows prior to the enactment of St. 1973, c. 320: 

"§ 2. . . . the [civil service] commission shall — 

***** 

(b) Hear and decide all appeals from any decision or action of, 
or failure to act by, the director, upon application of a person ag- 
grieved thereby ..." 

"§ 2A. . . . the director [of civil service] shall — 

(/) Decide in the first instance all reviews of markings on ex- 
aminations papers requested by applicants." 

"§ 12A. Not later than seventeen days after the date of mailing 
of the notice of the director to the applicant of the results of his 
examination or notice that he did not meet the requirements for 
admission to the examination, the applicant may file with the di- 
rector a request for a review of the markings of his examination 
paper, ... a request for a review of his marking of training and 
experience, or a request for a review of the finding by the director 
that he did not meet the requirements for admission to the exami- 
nation established by the director . . . 

***** 

"Within six weeks after acceptance of a request for a review of 
markings on any examination paper, the director shall cause such 
paper and the markings thereon to be reviewed, and shall transmit 
a copy of his decision to the applicant . . . 

"Not later than seventeen days after the date of mailing of the 
notice of the decision of the director, the applicant may appeal to 
the commission by filing a petition in a form approved by it and 
containing a brief statement of the facts as presented to the direc- 
tor for his review. 

***** 

"After filing of such an appeal, the commission shall hold a 
hearing, render a decision and transmit a copy of such decision to 
the appellant and to the director." (Emphasis supplied.) 
Sections 1, 2 and 8 of St. 1973, c. 320 amend these sections of G. L. c. 
31, in relevant part, as follows: 
2{b) 

"Hear and decide appeals from decisions or actions of, or fail- 
ures to act by, the director, except in matters relating to findings 
of the director relative to the grading of written, oral, or practical 
tests in a competitive examination, upon application of a person 
aggrieved thereby ..." 



P.D. 12 57 



2A(/) 

"Decide in the first instance all reviews requested by applic- 
ants of markings of training and experience or findings that re- 
quirements for admission to examinations were not met; pro- 
vided, however, that in the event of an error in the markings of 
examination papers the director shall have full authority to make 
any corrections he may deem necessary." 
12A 

"Not later than seventeen days after the mailing of the notice 
of the director to the applicant of the results of his examination or 
notice that he did not meet the requirements for admission to the 
examination, the applicant may file with the director a request for 
a review of the marking of his training and experience, a request 
for a review of the finding by the director that he did not meet the 
requirements for admission to the examination established by the 
director or a request that the computations of his general average 
mark be checked for error. Within six weeks after acceptance of 
the request, the director shall cause such marking or such finding 
to be reviewed, and shall transmit a copy of his decision to the 
applicant. Not later than seventeen days after the date of mailing 
of the notice of the decision of the director, the applicant may ap- 
peal to the commission by filing a petition in a form approved by 
it and containing a brief statement of the facts as presented to the 
director for his review. After the filing of such an appeal, the 
commission shall hold a hearing, render a decision and transmit a 
copy of such decision to the appellant and to the director ..." 
There is no Emergency Preamble in St. 1973, c. 320, nor is there a 
"savings clause" which excepts from the operation of c. 320 examina- 
tions administered prior to the effective date of this statute. 

St. 1973, c. 320 is an Act subject to Referendum and, therefore, under 
the ConsUtution of the Commonwealth, becomes effective 90 days after 
approval of the Act. Const. Amend. Art. 48, Ft. \\ E. B. Horn v. 
Assessors of Boston, 321 Mass. 579, 580; Greenaway's Case, 319 Mass. 
121. The Act was approved by the Governor on May 29, 1973, and it 
therefore becomes effective on August 27, 1973. 

The right to request review of the markings of an examination paper, 
granted by G. L. c. 3 1 , § 12A prior to the enactment of St. 1973, c. 320, 
is a right created by statute and is purely procedural in nature. Proce- 
dure and remedies may be changed by the Legislature, and there is no 
violation of the Constitution if it does so. Greenaway's Case. 319 Mass. 
121, 123; Devine's Case, 236 Mass. 588, 593. "Where situations relate 
merely to remedy or procedure and do not affect substantive rights, they 
have generally been held to operate retroactively." Greenaway's Case, 
supra, at 123. In other words, statutes involving changes in procedure 
apply to pending cases equally with those arising after their enactment, 
unless a contrary purpose is expressed or fairly inferable from the words 
used. Lindherg v. State Tax Commission, 335 Mass. 141, 143; 
Hollingsworth & Vose Co. v. Recorder of Land Court, Idl Mass. 45, 



58 P.D. 12 



47. However, a statute which changes procedure will not invalidate a 
step in procedure lawful when taken, E.B. Horn Co. v. Assessors of 
Boston, 321 Mass. 579, 584, as where a request for review of markings 
of an examination has been filed. 

Applying the foregoing rules to your inquiries, your questions may be 
answered as follows: 

1. The effective date of the Act is August 27, 1973. 
2.-3. Applicants have no right to file a request for a review of the mark- 
ings of their examination papers after August 27, 1973, with respect to 
examinations administered prior to that date, whether or not marked 
prior to that date, and whether or not they have been informed of their 
marks prior thereto. However, if an applicant files or has filed a request 
for a review of the markings of his examination paper prior to August 
27, 1973, that appeal is valid and must be heard and determined in ac- 
cordance with the provisions of G.L. c. 31, § 12A and §§ 2 and 2A, as 
they existed prior to the enactment of St. 1973, c. 320. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 7 August 10, 1973 

Honorable Malcolm E. Graf 

A ssociate Commissioner 

Department of Public Works 

100 Nashua Street 

Boston, Massachusetts 021 14 

Dear Commissioner Graf: 

You have requested an opinion on behalf of the Board of Commis- 
sioners of your Department whether the Department of Public Works 
[the "Department"] properly assessed Ramada Inns, Inc. the sum of 
$11,333.25 as compensation for the granting of license #5942 to Ramada 
Inns, Inc. Said license allows Ramada Inns, Inc., subject to certain re- 
strictions, to " . . . maintain existing fill in a former tidal area ... to 
odd and maintain fill on the bank of the existing fill and to install and 
maintain a storm drain outfall into the Chelsea River ..." You state 
that the charge of $11,333.25 was assessed at the rate of 37 Vi cents per 
cubic yard of tidewater displacement and "... was based on the fact 
that the fill was placed without benefit of a license in a tidal area and 
therefore constituted a public nuisance." I am also advised that the sub- 
ject property was included in the flats surrounding Noddle Island, all of 
which was granted to Samuel Maverick by Colonial ordinance on April 
1, 1633 and was also subject to an eminent domain taking by the United 
States government in 1942. Finally, you advise that the existing tidal 
displacement was accomplished prior to the 1942 eminent domain taking 
by the United States. 



P.D. 12 59 



General Laws, c. 91. § 21 provides for compensation to be paid to the 
Commonwealth for the displacement of tidal water as follows: 

"The amount of tide water displaced by . . . any filling of 
flats, shall be ascertained by the department, which shall re- 
quire the persons who cause such displacement to make 
compensation therefor ... by paying to the commonwealth 
... an amount assessed by the department, not exceeding 
thirty-seven and one half cents per cubic yard of water dis- 
placed . . . "* 

The Legislature has expressly provided that the Department may 
license and prescribe the terms (including compensation for water dis- 
placement) for the filling of tidal flats. G. L. c. 91, §§ 14, 21. 

The filling of tidal flats without a license or in violation of a license is 
considered a public nuisance and the Attorney General, upon request of 
the Department, may cause the nuisance to be abated. G. L. c. 91, § 23; 
Attorney General v. Bernice Baldwin, 1972 Mass. Adv. Sh. 345. 

The authority of the Department over the displacement of tidal waters 
was originally vested in the Board of Harbor Commissioners established 
by St. 1866, c. 149. St. 1866, c. 149 was followed by St. 1869, c. 432 
[now G. L. c. 91, § 23] which gave the Board of Harbor Commissioners 
the authority to license and regulate the filling of tidal flats. Legislative 
enactments prior to the passage of St. 1869, c. 432, which authorized in- 
dividuals to fill tidal areas have been held to operate as irrevocable 
grants and are not subject to regulation or licensing by the Department. 
Commissioners of Public Works v. Cities Service Oil Company, 308 
Mass. 349, 353; Treasurer and Receiver General v. Revere Sugar 
Refinery, 247 Mass. 483; Bradford v. McQuesten, 182 Mass. 80, 81, 82; 
VI 11 Op. Atty. Gen. 216. Where a legislative grant prior to St. 1869, c. 
432 authorizes the grantee to fill tidal waters, neither the grantee nor his 
successors in title are liable to the Commonwealth to pay compensation 
for tidal displacement. Bradford v. McQuesten, supra. 

In order to answer your request, I must determine whether the Colo- 
nial ordinance of 1633 or any subsequent Colonial ordinance or legisla- 
tive enactment amounted to such a grant as to render the subject prop- 
erty without the Department's jurisdiction to license tidal filling under 
G. L. c. 91, § 14. Although no particular words are necessary to consti- 
tute a legislative grant of the right to fill tidal flats, such an enactment 
should declare the grantee has the right to build upon or fdl tidal jlats. 
Bradford v. McQuesten, 182 Mass. 80, 81-82. 

The Colonial ordinance of April 1, 1633 granted Noddle Island to 
Samuel Maverick "... to enjoy to him and his heirs forever ..." Vol. 
I Records of Massachusetts Bay, Shurtleff, p. 104. Noddle Island was 
the subject of another Colonial ordinance on May 13, 1640 which de- 
clared that the flats "round about Noddle Island" do belong to Noddle 
Island to the ordinary low water mark. Vol. I Records of Massachusetts 
Bay, Shurtleff, p. 291. A third Colonial ordinance dated February 7, 

'Suhsequenl to the time this opinion w:is requested, the I egishiturc deleted 37' 2 cents as the maximum charge allimed 
for displacement. See St. 1972. c. 6S4. §11. 



60 P.D. 12 



1682 granted Noddle Island in fee to Samuel Shrimpton and exting- 
uished all rents, obligations and encumbrances. Vol. V Records of 
Massachusetts Bay, Shurtleff, p. 413. I do not find it necessary to de- 
termine if any of these three ordinances have the stature of a legislative 
grant, since it is my opinion that none of the Colonial ordinances granted 
the authority to fill tidal areas and therefore could not render the subject 
area without the Department's licensing authority pursuant to G. L. c. 
91, § 14. See Bradford v. McQuesten, 182 Mass. 80, 81-82. The effect of 
the Colonial ordinances was to give the owner of the land subject to the 
ordinance title in fee, subject to lawful regulation. Michaelson v. Silver 
Beach Improvement Assoc, Inc., 342 Mass. 251, 254; Old Colony 
Street Railway v. Phillips, 207 Mass. 174, 176. 

The only applicable legislative enactment relative to Noddle Island is 
St. 1833, c. 152, § 2, which authorized the East Boston Company, sub- 
ject to certain restrictions, to: 

"" . . . purchase, hold and possess, in fee simple or other- 
wise, all or any part of that island . . ., known by the name of 
Noddle's Island, with all flats around the same, and the 
privileges and appurtenances thereto appertaining, and all 
rights, easements and water courses therewith used and en- 
joyed . . ." 
This enactment did not convey any right to fill tidal water. I must, 
therefore, conclude its only effect was to allow the East Boston Com- 
pany to purchase Noddle's Island and that St. 1833, c. 152, § 2 did not 
operate as a legislative grant to fill tidal areas. 

Another question for my resolution is whether the eminent domain 
proceeding in 1942 had any effect on the Department's authority to 
license and exact displacement compensation with respect to the subject 
property. In this connection, I note that the tidal displacement present 
when license #5942 was issued took place prior to the 1942 condemna- 
tion proceedings. It is clear that the eminent domain taking was an in 
rem proceeding which vested independent title in fee in the United 
States. Collector of Taxes of City of Boston v. Revere Building Inc., 
276 Mass. 576, 579; Weeks v. Grace, 194 Mass. 296; Vol. I Nichols on 
Eminent Domain, § 1.142[1]. In my opinion, the fact that the United 
States acquired an independent title in fee to the subject property did not 
extinguish obligations arising from the presence of unauthorized tidal fill 
nor extinguish the public nuisance created by such illegal filling. See G. 
L. c. 91, § 23. The mere acquisition by a governmental body of property 
which contains or constitutes a nuisance does not extinguish the nuis- 
ance. Kurtigian v. City of Worcester, 348 Mass. 284, 288. Conse- 
quently, Ramada Inns, Inc. could be subjected to abatement proceed- 
ings pursuant to G. L. c. 91, § 23 and perhaps extraordinary tort liability 
if it maintained the subject property without benefit of a license. See 
Commr. of Public Works v. Cities Service Oil Co., 308 Mass. 349 
(abatement); Fuller v. Andrew, 230 Mass. 139 (tort liability). I therefore 
conclude that Ramada Inns, Inc. was properly subject to the licensing 
requirements of the statute. 



P.D. 12 61 

However, I note that G. L. c. 91, § 21 only requires persons ''who 
cause'' tidal displacement to pay compensation to the Commonwealth. 
Since Ramada Inns, Inc. did not cause the filling of tidal flats prior to 
1942, it should not have been assessed for the filling that took place prior 
to that time or to the date it acquired title to the subject property. It is 
therefore my opinion that the assessment of $1 1,333.25 should be abated 
to the extent that Ramada Inns. Inc. be reimbursed a proportionate 
amount of the assessment which reflects the charge assessed for un- 
licensed filling which took place prior to Ramada Inns, Inc. ownership 
of the property. The remaining share of the assessment may be retained 
by the Department as compensation exacted pursuant to G. L. c. 91, § 
21. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 8 August 22, 1973 

Mr. Walter J. Poitrast 

Director of Building Construction 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Poitrast: 

1 am in receipt of your request for my opinion with regard to whether 
the Director of Building Construction and the Secretary of Transporta- 
tion and Construction must comply with the procedures outlines in G. 
L. c. 7, § 30B when employing an architect or engineer to prepare a pre- 
liminary plan or specification for improvements necessary to maintain 
state-owned property pursuant to G. L. c. 6A, § 28. 

As you have stated, G. L. c. 7, § 30B establishes a Designer Selection 
Board and outlines the Board's authority with respect to projects under- 
taken by the Bureau of Building Construction. Specifically, G. L. c. 7, § 
30B provides in pertinent part: 

"Any project subject to the control and supervision of the 
director of building construction . . . shall be referred by the 
commissioner [Commissioner of Administration and Finance] 
to the board, which shall promptly provide suitable public 
notice of the proposed project." 
General Laws, c. 7, § 30B further delineates the procedure for selec- 
tion of a designer for such projects through a process of recommenda- 
tion made by the Board to the Commissioner of Administration and Fi- 
nance who has ultimate responsibility in appointing a designer. See 
1965-66 Op. Atty. Gen. 151. The procedure outlined by G. L. c. 7, § 
30B clearly must be followed in approving a designer for "any project" 
subject to control of the Director of Building Construction. General 



62 P.D. 12 

Laws, c. 6A, § 22 enacted simultaneously with G. L. c. 7, § 30B, in- 
cludes within such projects "all building construction projects" meeting 
three specific criteria as to (1) source of funding, (2) estimated cost, and 
(3) type of construction or repair. The procedures of G. L. c. 7, § 30B, 
then, must be followed before a designer can be selected to undertake an 
actual construction project subject to the control and supervision of the 
Director of Building Construction. 

On the other hand, G. L. c. 6A, § 28 specifically deals with examina- 
tion of requests for projects pursuant to G. L. c. 29, § 7 and for de- 
velopment of projects of his own by the Director of Building Construc- 
tion, ''whenever in his judgment the maintenance of state-owned prop- 
erty requires such improvements to prevent deterioration or costly fu- 
ture repair." (Emphasis supplied.) That G. L. c. 6A, § 28 is addressed 
to preliminary study of potential construction projects in which the Di- 
rector of Building Construction has authority to employ architects, en- 
gineers, etc. on a temporary basis without any proceeding before the 
Designer Selection Board, is clear from the following language of that 
section: 

"Said director shall cause to be made and filed with him 
preliminary plans and descriptive specifications sufficient for 
a careful estimate by a competent expert; and for such pur- 
pose such sums as may be appropriated or otherwise made 
available therefor may, with his approval, be expended and 
he may, with the approval of the secretary, employ temporar- 
ily such architects, engineers, contractors and consultants as 
may be necessary."' (Emphasis supplied.) 
Thus, such preliminary studies are not "projects" for the purposes of 
G. L. c. 7, § 30B, and as defined in G. L. c. 6A, § 22, but rather they 
are initial steps in estimating costs of potential projects. The em- 
ployment of temporary designers for such preliminary studies is within 
the discretion of the Director of Building Construction and the Secretary 
of Transportation and Construction. Accordingly, it is my opinion that 
the Director of Building Construction and the Secretary of Transporta- 
tion and Construction need not comply with the procedures delineated 
in G. L. c. 7, § 30B when appointing temporary architects for the limited 
purposes authorized by G. L. c. 6A, § 28. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 63 



Number 9 August 22, 1973 

Honorable Edward S. Graham 
Assistant Superintendent 
Massachusetts Hospital School 
Canton, Massachusetts 02021 

Dear Mr. Graham: 

You have requested my opinion on the following two questions: 

1) Do the Trustees of the Massachusetts Hospital School 
have the authority to request, receive, and disburse federal, 
state, county, corporate or personal grants and gifts under the 
existing statutes of the Commonwealth? 

2) What procedures must be followed in adopting regulations 
for the conduct of student/ patients at the Massachusetts 
Hospital School? 

In regard to your first question, G.L. c. 111. § 62K provides, "The 
trustees shall be a corporation for the purpose of taking and holding . . . 
any grant or devise of land or any gift or bequest of money or other per- 
sonal property made for the use or benefit of the school . . . and for the 
purposes of preserving and investing the proceeds thereof in notes or 
bonds . . . with all powers necessary to effect said purposes ... In the 
use, management and administration of such gifts or trusts, the trustees 
or their agents shall in their discretion so act as most effectively to aid 
the beneficiaries in accordance with the terms of the gift of trust . . ," It 
would appear clear from the face of § 62K that the Trustees may request 
and receive all grants and gifts, and disburse the proceeds of such grants 
and gifts subject to the limitation of the last sentence quoted above. Ac- 
cordingly, 1 answer your first question in the affirmative. 

With respect to your second question, G. L. c. Ill, § 62M authorizes 
the Trustees to make rules and regulations regarding the admission and 
discharge of patient/students. General Laws, c. BOA, § 1(5) exempts 
regulations of public health and educational institutions from the re- 
quirements of the Administrative Procedure Act of the Commonwealth. 
it would therefore seem that no particular procedure need be followed in 
adopting rules regarding the conduct of patient/students at the Hospital 
School, other than the rules of procedure governing the Board of Trus- 
tees, contained in the corporate charter of the institution. I should add, 
however, that in order to avoid possible constitutional problems, the 
Hospital School should publish its regulations and make them easily ac- 
cessible to patient/students, see Hassan v. Boothhy, 318 F. Supp. 1183 
(D. Mass. 1970). I believe that you have already planned to take such 
action. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



64 P.D. 12 



Number 10 August 22, 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 the question of whether the heads 
of municipal fire departments are obliged to carry out a directive from 
the State Fire Marshal requiring the certification of trucks carrying 
flammable liquids. Upon examining the applicable statutes and regula- 
tions, specifically G. L. c. 148 and FPR-7 (Rules and Regulations Gov- 
erning the Transportation of Flammable Liquids by Tank Vehicles, Pipe 
Lines or other Methods Within the Commonwealth), 1 conclude that 
local department heads are obliged to carry out such a directive. 

The duties of the Board of Fire Prevention Regulations of the De- 
partment of Public Safety are contained primarily in G. L. c. 148. The 
following sections have particular importance to the question you have 
asked. Chapter 148, § 9 provides in pertinent part as follows: 

"The board [of fire prevention regulations] shall make rules 
and regulations for the keeping, storing, use, manufacture, 
sale, handling, transportation or other disposition of . . . ex- 
plosive or inflammable fluids or compounds . . ." 
Chapter 148, § 10 provides in pertinent part as follows: 

''The board of fire prevention regulations shall make, and 
from time to time may alter, amend and repeal, rules and reg- 
ulations relative to fire prevention which said board is au- 
thorized or required under any provision of this chapter to 
adopt or make ..." 
Chapter 148, § lOA provides in pertinent part as follows: 

"The head of the fire department in each city, town, or fire 
district shall grant, in accordance with the rules and regula- 
tions of the board, such permits for use in such city, town or 
fire district as may be required by such rules and regulations, 
and make such inspections therein, and have and exercise 
such powers and duties in connection therewith, as the 
marshal may direct." 
Under the provisions of G. L. c. 148, § 10, quoted above, it is clear 
that the duty to make rules and regulations relative to fire prevention in 
general, and under the provision of G. L. c. 148, § 9, quoted above, 
rules and regulations specifically relative to inflammable liquids, rests 
with the Board of Fire Prevention Regulations. In compliance with this 
statutory mandate, the Board has established rules and regulations gov- 
erning the transportation of flammable liquids by tank vehicles within 
the Commonwealth. These rules and regulations are contained in bulle- 
tin FPR-7. [Note: References in FPR-7 are to "flammable liquids"; re- 
ferences in G. L. c. 148 are to "Inflammable fluids"; Webster's Dic- 
tionary defines "flammable" as "capable of being easily ignited and of 



P.D. 12 65 



burning with extreme rapidity — now used technically in preference to 
inflammable."] [For similar statutory interpretation of Fire Prevention 
Regulations see 1965-1966 Op. Atty. Gen. 332.] 

Section 4a of FPR-7 provides that no tank truck, as defined in section 
1(a), shall be used to transport any flammable liquid (defined as Class A 
and Class B, section 2), unless the vehicle has been submitted for ap- 
proval to the State Fire Marshal and his approval is evidenced by the 
issuance of a certificate of approval. The provisions of section 4a are 
extended to other vehicles capable of carrying such liquids by succeed- 
ing sections 4b, 4c and 4d. The Regulations authorize the Marshal to ex- 
ercise wide authority in obtaining any information which he may deem 
necessary before the issuance of his certificate of approval. A physical 
inspection of any such vehicle is, in my opinion, wholly consistent with 
the purpose of the Regulations, and is analogous to the provision pro- 
vided in G. L. c. 148, § 4, for inspection of buildings and other premises. 
Realizing the potential hazards inherent in the transportation of flamma- 
ble liquids, the Board has promulgated these regulations to protect the 
safety of the public, and to maintain a system for determining the adequ- 
acy of vehicles to carry such liquids. 

The directive of the State Fire Marshal to all fire chiefs authorizes and 
directs them to biennially conduct the inspections and to issue certifi- 
cates of approval which are to be attached to any vehicle which meets 
the inspection standards. This certificate of approval is referred to as a 
"permit" under FPR-7, section 4 which states "The certificate of ap- 
proval herein provided for shall serve as a permit to transport flammable 
liquids for a period not to exceed two years." (Emphasis supplied.) This 
making of the inspection for the purpose of issuing the certificate is a 
process within the purview of section lOA, and as such falls within the 
scope of duties which can be delegated to heads of local fire depart- 
ments, in accordance with regulations of the Board. Furthermore, sec- 
tion lOA provides that the head of the local department "shall" make 
such inspections and exercise such powers and duties in that connection 
as the Marshal may direct. The local fire chiefs are also required to keep 
a record of every permit so issued, and may charge a fee of up to fifty 
cents for each permit issued. In my Opinion, this is a definite and binding 
directive to exercise the delegated powers in so far as the implementa- 
tion of the permit system is concerned. 1 intimate no opinion as to the 
Fire Marshal's powers in other situations, as no other facts are before 
me. 

For the above-stated reasons, 1 am of the opinion that the Board of 
Fire Prevention Regulations, in accordance with c. 148, §§ 9 and 10, has 
authority to make regulations governing the transportation of flammable 
liquids by tank vehicles within the Commonwealth. Further, heads of 
municipal fire departments are obliged to carry out the directive from 
the State Fire Marhsal requiring the certification of such tank vehicles 
carrying flammable liquids. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



66 P.D. 12 



Number 11 September 4, 1973 

Honorable Robert L. Meade 
Chairman, Department of Public 

Utilities 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Chairman: 

You have requested my opinion as to the alternatives available to re- 
cover possible overcharges collected since 1954 by Gray Line, Inc., 
Rawding Tours, Royal Blue Bus Line, and Pilgrim Sightseeing Com- 
pany, Inc. (hereafter "Gray Line"). You have informed me that Gray 
Line last filed a sightseeing tariff schedule with the Department of Pub- 
lic Utilities on March 1, 1954 and since then has raised its rates several 
times without filing any new tariffs. Gray Line has now filed with your 
department new tariffs concerning sightseeing rates and has asked your 
department to waive the usual notice requirement for allowing rate in- 
creases to become effective. You have specifically inquired whether 
there is anything the Department of the Attorney General or the De- 
partment of Public Utilities can or should do about the overcharges and 
whether any statute of limitations might pose a problem. Finally, you 
note that uncertainty exists as to whether Gray Line's rate changes from 
1954-1973, although made in violation of departmental rules and regul- 
tions, were otherwise reasonable. 

Section 5 of c. 399 of the Massachusetts Acts and Resolves of 1931, 
as amended by c. 93 of the Massachusetts Acts and Resolves of 1933, 
delineates the role of the Department of Public Utilities in regulating au- 
tomobile sightseeing services: 

"No person or corporation shall offer or furnish service by 
sight-seeing automobiles in or from the city of Boston unless 
said person or corporation has obtained from the department 
of public utilities a certificate declaring that public conven- 
ience and necessity require such operation. Said department 
may, after public hearing, issue or refuse to issue such a cer- 
tificate and may attach to the exercise of the privilege 
conferred by said certificate such terms and conditions as to 
operation and fares as the said department may deem that 
public convenience and necessity require. Said department 
may, after notice and hearing, suspend or revoke any such 
certificate for cause or alter or amend any terms or conditions 
attached to the exercise of the privilege conferred thereby. 
Said department may make suitable and reasonable rules, or- 
ders and regulations governing the operation and fares of 
sightseeing automobiles carrying persons in or from the city 
of Boston, and may revise, alter, amend and annul the same 



P.D. 12 67 

Based upon my reading of this statute, the applicable cases, and the 
facts you have furnished, 1 am of the opinion that the said statute em- 
powers your department to suspend or revoke the certificate of public 
convenience and necessity under which Gray Line operates. 
Commonwealth v. Reardon, 282 Mass. 345. Gray Line's failure to file 
new tariffs for its rate increases would constitute cause within the mean- 
ing of section five's suspension or revocation clause. 

Should less Draconian measures be deemed appropriate, said § 5 em- 
powers your department to attach such terms and conditions as to oper- 
ation and fares as public convenience and necessity are deemed to re- 
quire. Implicit in this power is the requirement that the terms and condi- 
tions imposed be reasonable and in furtherance of the public conveni- 
ence and necessity. Allowing Gray Line to continue its operation as a 
sightseeing canier might well be made contingent upon its seeking to 
rectify the situation created by its having operated in derogation of 
statutory and regulatory commands for a prolonged period. The exact 
amount of such terms and conditions not being before me, I will not 
speculate as to their propriety. Suffice it to say that whatever terms and 
conditions are imposed must be reasonable and in furtherance of the 
public convenience and necessity. 

Your department's rule ordering that all bus lines furnishing sight- 
seeing service in and from Boston file rate tariffs with the department 
appears to comport with the statutory requirement that rules, orders, 
and regulations governing operation and fares be "suitable" and 
"reasonable." Even were the various increases in Gray Line's rates 
from 1954-1973 reasonable in light of costs to the carrier, the rule requir- 
ing advance filing of increased tariffs is a suitable and reasonable method 
of governing the operation and fares of sightseeing automobiles. Requir- 
ing advance filing of increased tariffs protects sightseers from over- 
charges and avoids precisely the post facto proof of what is a "reason- 
able rate" that is presented here. Proving today what was a reasonable 
rate in 1955 or 1957 will be difficult, time consuming and subject to dis- 
tortion; moreover, the sightseers who may have been overcharged years 
ago will not likely be located nor able to prove they were users of Gray 
Line's service and thus entitled to a rebate. No Federal constitutional 
obstacles of interstate commerce obtain in this situation. See 
Commonwealth v. Reardon, supra; Commonwealth v. New England 
Transportation Company. 282 Mass. 429. 

In addition to the revocation and suspension powers and the power to 
impose terms and conditions outlined above, § 6 of c. 399 of said Acts of 
1931 provides penalties for violations. Violators "shall be punished by a 
fine of not more than fifty dollars or by imprisonment in the house of 
correction for not more than one month, or both." The language of § 6 is 
mandatory, not precatory. Moreover, that section gives the Supreme 
Judicial Court and Superior Court equity jurisdiction to restrain viola- 
tions of any rule, order or regulation of your department upon petition 
by your department or any interested party. Finally, § 6 provides for a 
maximum $25 fine against anyone who operates any sightseeing au- 



68 P.D. 12 

tomobile as a driver in violation of any rule, order or regulation of your 
department. Commonwealth v. Reardon, supra. 

General Laws, c. 159A, §11 A specifically excludes sightseeing au- 
tomobiles licensed under c. 399 of the Acts of 1931 from the definition of 
the term ''charter service" and "special service" as defined in that sec- 
tion; hence the provisions of c. 159A, §15 do not govern here. See Op. 
Atty. Gen., Dec. 31, 1947, p. 43. 

In Metropolitan District Commission v. Department of Public 
Utilities, 352 Mass. 18, the Supreme Judicial Court held that the De- 
partment of Public Utilities had no power to award reparations to cus- 
tomers for overcharges collected by an electric company: "The depart- 
ment was correct in ruling that it had no power to award reparations. 
Such a power must be expressly conferred by statute, as it was in the 
case of carriers ( G. L. c. 159, § 14)." 352 Mass. at 26. The provisions 
of c. 159, § 14 being inapplicable to the instant facts, and no other ex- 
press statutory authorization obtaining, your department has no power 
to award reparations to customers for overcharges. Whether Gray 
Line's rates constituted "unfair methods of competition.' or "unfair or 
deceptive acts and practices" within the meaning of G. L. c. 93A, § 2(a) 
cannot be determined on the facts now before me. 

Your final inquiry asks whether and to what extent a statute of limita- 
tions would apply here. General Laws, c. 260, § 5 states: 

"Actions for penalties or forfeitures under penal statutes, if 
brought by a person to whom the penalty or forfeiture is 
given in whole or in part, shall be commenced only within 
one year next after the offence is committed. But if the pen- 
alty of forfeiture is given in whole or in part to the common- 
wealth, an action therefor by or in behalf of the common- 
wealth may be commenced only within two years next after 
the offence is committed." 
Section 6 of c. 399 of said Acts is a penal statute in which the penalty 
is given to the Commonwealth. A two-year statute of limitations is ap- 
plicable. Moreover, based upon the facts you have provided, I am of the 
opinion that separate causes of action accrued at each illegal change in 
the tariff charged by Gray Line between 1954 and 1973. Chapter 260, § 5 
would preclude recovering at this time for past violations not occurring 
within the last two years unless a tolling provision were operative. 
Chapter 260, § 12 provides that fraudulent concealment tolls the statute, 
but I am unable to ascertain from the facts whether any fraudulent con- 
cealment is involved in this case. Mere non-feasance would not be 
enough; positive acts done with intent to deceive are required. Connelly 
V. Bartlett, 286 Mass. 311; Maloney v. Brackett, 275 Mass. 479. The 
statute of limitations in c. 260, § 5 has no effect upon your powers to 
revoke or suspend or to impose terms and conditions under § 5 of c. 399 
of the Acts of 1931. That section admits of no limitation and empowers 
your department to take action at any time. 

In conclusion, I am of the opinion, subject to the caveats expressed 
above, that your department may suspend or revoke Gray Line's certifi- 
cate or impose such terms and conditions relative to operation and fares 



P.D. 12 69 



as the public convenience and necessity require. However, your de- 
partment may not award reparations to consumers for past overcharges, 
although these consumers may seek reparations on their own behalf. 

Finally, the Commonwealth is authorized to seek enforcement of the 
penalties provided for violation subject to the applicable limitations sta- 
tute. 

Very truly yours, 

ROBERT H. QUINN 

Attorn e v General 



Number 12 September 5, 1973 

Honorable Louis J. Resteghini 
Director, Division of Registration 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Resteghini: 

You have requested on behalf of the State Examiners of Electricians, 
my opinion on the following question: 

"Is a homeowner excluded from the provisions of Section 
1 of Chapter 141 of the General Laws (Ter. Ed.) as it relates 
to installing electrical wiring in his own home?" 

Section 1 provides, "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 person, firm or corporation 
shall have received a license and a certificate therefor, issued by the 
state examiners of electricians and in accordance with the provisions 
hereinafter set forth." The key word in the section, as it is involved in 
your request, is "business." While the word may connote mere "activ- 
ity," for profit or otherwise, it also may be construed more narrowly to 
include only the engagement of one's self for some kind of compensa- 
tion. 1 am inclined to the view that the General Court intended the latter 
construction. 

The principal aim of the section, and of c. 141 generally, appears to be 
the protection of those who deal with electricians. The State Examiners, 
in effect, give electricians their credentials so that the public will be as- 
sured of their qualifications. There is no need for such credentials when 
an individual does his own electrical work, and thus the section is in- 
applicable to such a person. 

My conclusion is supported by the unreported opinion of Chief Justice 
McLaughlin of the Superior Court in Herrick v. Butler (Nantucket 
Superior Court. Eq. No. 1524) (1972). There, the Chief Justice ruled 
that the provisions of G. L. c. 142, dealing with plumbing but similar in 
language to those of c. 141, were directed at regulating the practice of 
plumbing as a profession and were not aimed at preventing individuals 



70 P.D. 12 



from doing their own work. He stated that the latter purpose was ac- 
complished by other sections, whose counterparts are not found in c. 
141. 

In conclusion, for the reasons stated above, I answer your question in 
the affirmative. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 13 September 20, 1973 

The Honorable Joseph M. Leavey 

Commissioner 

Department of Youth Services 

73 Tremont Street 

Boston, Massachusetts 

Dear Commissioner Leavey: 

You have requested my opinion as to whether or not you must honor 
a court's choice of a particular location, as stated on a mittimus, when a 
child is committed to the Department of Youth Services for further ex- 
amination, trial or continuance, or for further indictment and trial, pur- 
suant to Massachusetts G.L. c. 119, §68. Pursuant to Section 68, the 
Department of Youth Services may provide special foster homes and 
detention homes for children held for further examination or trial. 

In considering your question, it appears that the provisions of G.L. c. 
119, § 68B are applicable. That section provides: 

''The department of youth services may use or provide 
special foster homes and places of temporary custody com- 
monly referred to as detention homes, at various places in the 
commonwealth which shall be completely separate from any 
police station, town lockup or jail, and which shall be used 
solely for the temporary care, custody and study of children 
committed to the care of the department of youth services. 
The commissioner of youth services may at his discretion 
transfer any child thus committed from any foster home or 
detention home to another such foster home or detention 
home." 
It seems clear that you as Commissioner may transfer any child com- 
mitted on a temporary basis from any foster home at your discretion, if 
you comply with other applicable statutes concerning the types of places 
to be maintained. 

I therefore answer your question in the negative. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 71 



Number 14 September 25, 1973 

Louise Maloof, Esquire 

Executive Secretary Pro Tern 

Executive Council 

State House 

Boston, Massachusetts 02133 

Dear Miss Maloof: 

You have requested my opinion on behalf of the Executive Council on 
the question whether "veterans' benefits under G. L. (Ter. Ed.) C. 1 15, 
S 5 may be paid to a veteran whose debt was incurred prior to the date 
of application to the Boston Department of Veterans' Services, as in the 
manner described in the attached report from the Commissioner of Vet- 
erans' Services." Based on the facts given to me in the Commissioner's 
report, I answer your question in the affirmative. 
I. Validity of the Application 

The Commissioner's report states that at the time the veteran, Henry 
D. Corse, entered the Massachusetts General Hospital for a hernia op- 
eration, "[i]t appears . . . [he] filled out a form at the hospital naming 
the Veterans' Services Department as the public assistance agency from 
which he was requesting aid." About three weeks after his discharge 
from the hospital, he filed an application with the Boston Veterans' Of- 
fice requesting assistance for the payment of his hospital bills. 

The Boston Veterans' Office denied his application, ostensibly on the 
basis of G. L. c. 115, § 5, which provides in pertinent part that: 

"No payment of benefits shall be made for any period of 
time prior to the date of application; provided, however, that 
the commissioner, on recommendation of the veterans' agent 
of the city or town paying the benefits, may authorize the 
payment of benefits for not more than sixty days prior to the 
date of the application if the necessity therefor has been 
caused by serious accident or illness to the applicant or to 
one or more dependents of the veteran upon whose service 
the application is made." 
The question thus arises: whether Corse's filling out of the form pro- 
vided him by the Massachusetts General Hospital is equivalent to his 
filing an application at the Boston Veterans' Office. 

Typed on the hospital's form under the heading "remarks", is the 
comment that the veteran must contact Veterans' Services after his dis- 
charge. In my opinion, the filling out of this form constitutes a tempor- 
ary application for assistance which becomes permanent and final, 
when, and if, the veteran, upon his discharge, applies at his local vete- 
rans' office for assistance.' 

Such a procedure is a sound and adequate one to meet the needs of a 
veteran who is hospitalized in an emergency and who is, therefore, un- 
able to apply for aid at his local office. 

'I .im mt'iirmcd hy ihe OITkc of the (OmmissioncT of Veterans' Services that lhe> have agreed lo such procedure and 
consider Ihe hospital's form sulTicient notice of a veteran's apphcation for assistance. 



72 P.D. 12 

Accordingly, it is my opinion that Henry D. Corse filed a valid appli- 
cation for medical aid with Veterns' Services and that nothing in G. L. 
c. 115, § 5 renders him ineligible for such assistance. 

II. Student Status 

According to the information you have provided me, the Boston Vete- 
rans' Office also rejected Corse's application for medical aid on the 
ground that his current status as a graduate student at Emerson College 
rendered him ineligible. Additionally, they maintain that Corse fraudul- 
ently obtained financial aid from them during October and November, 
1971, and July and August, 1972, by not disclosing his student status at 
those times. 

It is my opinion that Corse's student status did not render him ineligi- 
ble for medical aid from Veterans' Services. There is nothing in the 
General Laws or the regulations of the Commissioner of Veterans' Serv- 
ices which mandates a contrary result. Moreover, the Office of the 
Commissioner of Veterans' Services has declared in a memorandum to 
local veterans' offices: 

''The policy of the Office of the Commissioner of Veter- 
ans' Services regarding eligible veterans attending school is 
as follows: 

1. The veterans shall be aided for all medical. 

2. Veterans may have their medical insurance paid by Vete- 
rans' Benefits. 

3. Veterans may be allowed Ordinary Benefits equal to the 
Veterans Administration amount of subsistence until the 
veterans receive said Veterans subsistence. 

4. Veterans attending high school may be allowed Ordinary 
Benefits." 

Since Corse is apparently otherwise eligible for veterans' assistance 
but for his student status, sections one and three of the policy statement 
of the Office of the Commissioner of Veterans' Services just quoted 
render him eligible for medical assistance from the Boston Veterans' Of- 
fice. 

III. Waiver of Application 

Finally, the Boston Veterans' Office justified its rejection of Corse's 
application on the fact that a woman who accompanied him at the time 
of his admission to the hospital allegedly agreed to be responsible for the 
costs of Corse's hospitalization. 

You do not provide me with enough information to determine whether 
this woman did, in fact, assume such responsibility. But, you do provide 
me with sufficient factual data to determine whether Corse knowingly 
waived his application for veterans' medical assistance. In this regard, it 
is my opinion, on the basis of the facts presented, that the woman acted 
on her own, without Corse's sanction and, therefore, could not have 
possibly deprived Corse of his rights to veterans' assistance. 

In conclusion, then, it is my opinion that veterans' benefits under G. 
L. c. 1 15, § 5 may be paid to a veteran whose debt was incurred prior to 



P.D. 12 73 



the date of application to the Boston Department of Veteran's Services 
in the manner described in the case of Henry D. Corse. Accordingly, in 
my opinion, the Boston Veterans' Office improperly rejected Corse's 
application for medical assistance. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 15 October 2, 1973 

The Honorable Nicholas L. Metaxas 

Commissioner 

Department of Corporations and Taxation 

100 Cambridge Street 

Boston, Massachusetts 02204 

Dear Commissioner Metaxas: 

You have requested my opinion concerning the status of an employee 
of your department during the time when he is on leave of absence from 
your department and commencing employment with the Federal service. 

You have stated that the employee is seeking a leave of absence from 
September 24, 1973 through November 12, 1973 (representing thirty-four 
days accumulated vacation leave), and that he is to begin Federal em- 
ployment on October 8, 1973. 

You ask "whether said employee can be on vacation leave, with pay, 
during a period of time when he will also be on a Federal payroll — ?" 

While a prohibition exists against a person receiving more than one 
salary from the Commonwealth at the same time (G.L.c.30 sec. 21), 
there is no prohibition against Federal service by a person on leave of 
absence from Commonwealth service. This is particularly true in this 
case where the monies to be paid by the Commonwealth have already 
been earned by accumulated vacation days. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 16 October 29, 1973 

Mr. Thomas W. Devine, Director 

Vietnam Bonus Division 

Treasury Department 

State House 

Boston, Massachusetts 02133 

Dear Mr. Devine: 

In your letter dated September 10, 1973 referring to St. 1968, c. 646, 
as amended by St. 1969, c. 325 and St. 1973, c. 692, all of which carry 



74 P.D. 12 



Emergency Preambles, you inquire whether Vietnam Bonuses are pay- 
able under certain conditions. Thus you inquire whether 

"I. Under the most recent amendment. Acts of 1973, c. 
692, s. 1, are veterans who meet all other requirements of the 
statute, who served in the Vietnam area between July 1, 1958 
and April 1, 1973 for any period of time, eligible to receive 
the $300.00 payment authorized by the statute? 

"2. With respect to veterans who serve during the afore- 
stated dates of the Vietnam conflict outside the Vietnam 
area, must their active service have begun not later than Oc- 
tober 1, 1972 in order to be eligible for payment of the $200.00 
authorized by the statute, assuming all other statutory re- 
quirements are met? 

"3. With respect to the definition of 'active service in the 
armed forces' as appearing in Acts of 1969, c. 325, does such 
definition exclude from eligibility to receive payment of 
$300.00 or of $200.00. a member of the army national guard or 
air national guard whose unit was not federalized but who, 
under orders of his military superiors, served in the Vietnam 
area during the aforestated time frame for the purpose of pro- 
viding assistance and supplies to regular units of the armed 
forces of the United States operating in the Vietnam area?" 
Section 1 of c. 646 of the Acts of 1968 originally imposed as a primary 
condition for eligibility of a veteran for a Vietnam bonus that he "shall 
have served for a period of six months or more." Thus, in pertinent 
part, § 1 provided: 

"SECTION I. Upon application . . . there shall be . . . 
paid ... to each person, who shall have served in the armed 
forces of the United States for a period of six months or more 
since July first, nineteen hundred fifty-eight until the end of 
the Vietnam conflict . . . the sums hereinafter specified . . . 

(1) Three hundred dollars to each such Vietnam veteran 
who performed active service outside the continental limits of 
the United States in the Vietnam area, as said area is de- 
scribed by proper federal authority. 

(2) Two hundred dollars to all other such Vietnam veterans 
whose active service was performed within the continental 
limits of the United States, or without the continental limits 
of the United States in an area other than the Vietnam area." 

St. 1969, c. 325, added a second, third and fourth paragraph to SEC- 
TION 1 as it appears in St. 1968, c. 646, the second and fourth parag- 
raphs being as follows: 

"'Active service in the armed forces', as used in this sec- 
tion shall not include active duty for training in the army na- 
tional guard or air national guard or active duty for training as 
a reservist in the armed forces of the United States. 



P.D. 12 75 



"The benefits of this section shall also extend to include 
those persons who served on active duty less than six months 
since July first, nineteen hundred and sixty-eight, who have 
been discharged or released due to a disability or disease in- 
curred in the line of duty, or were killed or died of injuries 
incurred while serving on active duty of less than six months; 
provided, however, they meet the requirements of this act." 
Section I . as it appears in Section I of Chapter 692 of the Acts of 
1973, is materially changed as to the requirements of length of service 
provided for in the first paragrph and now provides, in pertinent part, as 
follows: 

"Section I. Upon application . . . there shall be . . . paid 
... to each person, who shall have served in the armed 
forces of the United States in active service, since July first, 
nineteen hundred and fifty-eight and prior to April first, nine- 
teen hundred and seventy-three . . . the sums hereinafter 
provided . . . 

(1) Three hundred dollars to each such Vietnam veteran 
who performed active service outside the continental limits of 
the United States in the Vietnam area, as said area is de- 
scribed by proper federal authority. 

(2) Two hundred dollars to each such Vietnam veteran who 
performed active duty within the continental limits of the 
United States, or without the continental limits of the United 
States in an area other than the Vietnam area /or a period of 
six months or more." (Emphasis supplied.) 

Section 1 of Chapter 646 of the Acts of 1968, as amended by the 1969 
and 1973 statutes, would appear to eliminate the six month service re- 
quirement for veterans otherwise eligible to receive a $300.00 bonus, and 
to reduce the length of service requirement for veterans otherwise eligi- 
ble to receive the $200.00 bonus but who did not complete six months of 
active duty because of disability or disease or death in the line of duty. 
Thus the answer to your first question is in the affirmative. 

The answer to your second inquiry, namely, must active service have 
begun not later than October 1, 1972, in order to be eligible for the 
$200.00 payment provided for in subparagraph (2) of Section 1 as 
amended, is in the affirmative. No person is eligible to receive a $200.00 
bonus unless he served between July 1, 1958 and April 1, 1973, and 
served at least six months. Any service which commenced after October 
1, 1972 would be for a period less than six months prior to April 1, 1973, 
and therefore would not entitle a veteran to a $200.00 bonus under said 
subparagraph (2) unless the six-month requirement is excused by reason 
of disease, disability or death as provided in the fourth paragraph of Sec- 
tion I. 

The answer to your third question is that a member of the army na- 
tional guard or air national guard whose unit was not federalized but 
who under orders of his military superiors served in the Vietnam area is 



76 P.D. 12 



entitled to a bonus of $300.00 if otherwise qualified. I note that both the 
titles and statutory language contained in St. 1968, c. 646, as amended 
by St. 1973, c. 692 authorize the award of a bonus to Massachusetts re- 
sidents "... who served in the armed forces of the United States dur- 
ing the Vietnam conflict." The Supreme Judicial Court has consistently 
held that language inserting a statute into the General Laws should be 
given force in determining legislative intent. Commonwealth v. Giles, 
350 Mass. 102, 118; Silverman v. Wedge, 339 Mass. 244, 245; Dunn v. 
Commissioner, 281 Mass. 381. The word "served," in the context of 
military service, has been held to contemplate: 

"... participation in situations where army, navy, and 
marine corps were engaged in performing the objects for 
which they were called into being and the individual members 
were acting their several parts. So understood, service is not 
necessarily confined to combat with enemy forces." Dunn v. 
Commissioner of Civil Service, 281 Mass. 376, 380; see also, 
Weiner v. City of Boston, 342 Mass. 67. 
In my opinion the exclusion from award of the bonus, contained in St. 
1969, c. 325, of army national guard, air national guard or army reserv- 
ist, whose only active duty was active duty for training does not disqual- 
ify members of the army reserve, air national guard or army national 
guard whose service qualifies as performing military objectives. Whether 
a bonus applicant has performed military objectives is, of course, a fac- 
tual determination which you must make. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 17 November 6, 1973 

Honorable Edward Powers 
Director of Civil Service 
294 Washington Street 
Boston, Massachusetts 02108 

Dear Mr. Powers: 

Your predecessor requested my opinion whether the position of Town 
Accountant of the Town of Methuen is subject to the operation of the 
Civil Service Law and Rules. 

On March 15, 1944, when the Town of Methuen was a town, it ac- 
cepted c. 31, pursuant to § 47 thereof. In a "town," the position of 
Town Accountant is subject to the Civil Service Law and Rules under 
G. L. c. 41, § 55, third sentence. However, in 1972 the Town of 
Methuen adopted a new Charter. 

I have previously determined that the Town of Methuen is a city by 
reason of the applicable provisions of its new Charter. See my letter 
dated December 6, 1971, to Kenneth H. Pollard, Chairman of the 



P.D. 12 77 

Methuen Charter Commission, relating to the preliminary draft of the 
Charter. The final draft calls for a town government having a town 
council of 21 members and a town administrator, as in the preliminary 
draft, and my conclusion that the Town of Methuen is a "city" remains 
the same. 
General Laws, c. 31 provides, in relevant part, as follows: 

"§5. 

No rule made by the commission shall apply to the selection or ap- 
pointment of any of the following: — 

** ** * 

Officers whose appointment or election if by a city council, 
or subject to its confirmation, except those expressly made 
subject to this chapter by statute . . ." 
"§47. 

. . . This chapter shall be in force in all cities of the com- 
monwealth of less than one hundred thousand inhabitants 
with respect to the official service ..." 
According to the last census in 1971, the population of the Town of 
Methuen is 35,081. 
Section 2-8 of the Methuen Charter provides in part: 

"(a) Town Accountant — As soon as practicable after the council 
has been organized, the town council shall elect by ballot or 
otherwise a town accountant to hold office for the term of 
two years and until his successor is qualified ..." 
The position of Town Accountant is in the "official service." Accord- 
ingly, the position is exempt from civil service, and it is not necessary 
for the Town of Methuen to act under St. 1973, c. 420 in order to for- 
malize that exemption. 

In view of the foregoing analysis, it is unnecessary to speculate what 
effect the attainment of the status of a city by the Town of Methuen had 
on its prior acceptance of Chapter 31 when it was a town, since by vir- 
tue of § 47 it is subject to Chapter 31, and the position of Town Accoun- 
tant is expressly excepted under § 5. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



78 P.D. 12 

Number 18 November 6, 1973 

Harold F. Kowal, Esquire 

Special Counsel 

Alcoholic Beverages Control Commission 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Sir: 

You have requested an opinion whether in accordance with G. L. c. 
138, § 17 there are any seasonal liquor licenses available in the town of 
Carver. General Laws, c. 138, § 17 delineates the procedure for the 
granting of seasonal licenses. After consideration of the statute, the es- 
timate of population increase filed by the local licensing authority with 
your Commission, and the circumstances under which the estimate was 
made, I am of the opinion that the estimate is improper and not in ac- 
cordance with the statutory provisions. 

General Laws, c. 138, § 17 provides, in pertinent part: 

"The local licensing authorities of any city or town, except 
the city of Boston, may make an estimate prior to March the 
first in any year of any temporary increased resident popula- 
tion in such city or town as of July the tenth following, and 
one additional license under section fifteen [of Chapter 138], 
to be effective from April the first to November the thirtieth 
only, may be granted by said authorities for each unit of five 
thousand or additional fraction thereof of such population as 
so estimated, . . . provided, that not more than one additional 
license shall be granted under this paragraph to the same per- 
son or for the same premises in any one year; and provided, 
further, that the local licensing authorities of any city or 
town, except the city of Boston, may grant, in addition to and 
irrespective of any limitation of the number of licenses con- 
tained in this section, seasonal licenses under section twelve 
[of Chapter 138], to be effective from April the first to 
November the thirtieth only, ... to the amount or number 
that such authorities deem to be in the public interest. Every 
estimate hereunder of temporary resident population shall be 
made and voted upon by the local licensing authorities at a 
meeting of said authorities called for the purpose after due 
notice to each of the members thereof of the time, place and 
purpose of said meeting and after investigation and ascer- 
tainment by them of all the facts and after co-operative dis- 
cussion and deliberation. A copy of such an estimate, signed 
by a majority of the members of said authorities, stating 
under the penalties of perjury that all the foregoing require- 
ments have been complied with and that the estimate is true 
to the best of their knowledge and belief, shall be forwarded 
forthwith to the commission." 



P.D. 12 79 

Pursuant to G. L. c. 138. § 17. the local licensing authority of Carver, 
the Board of Selectmen, held a meeting on February 13, 1973, and esti- 
mated that the temporary increased resident population as of July 10, 
1973 would be 9000. However, it appears from the facts presented that 
(1) one member of the Board was not notified by any person or any 
member of the Board that the matter of estimating temporary resident 
population for purposes of G. L. c. 138, § 17 would be discussed; (2) 
there was no investigation and ascertainment of the facts of any tempor- 
ary resident population increase in the town of Carver as of July 10th, as 
required by Section 17; (3) there was no cooperative discussion and de- 
liberation of any kind whatever during the meeting of the facts upon 
which the temporary resident population increase estimate was based. 

The validity of the estimate and the availability of any seasonal 
licenses pursuant to the statutory authorization is dependent upon a fac- 
tual determination whether the statutory provisions were complied with. 
Pettengell v. Alcoholic Beverages Control Commission, 295 Mass. 473. 
Therefore, for the reasons stated above, the statute was not complied 
with, the estimate of temporary resident population was made in contra- 
vention of the statute, and is invalid and not binding upon the town of 
Carver or upon the Alcoholic Beverages Control Commission. For 
these reasons, I am of the opinion that no seasonal licenses are available 
in the town of Carver in accordance with G. L. c. 138, § 17. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 19 November 6, 1973 

Honorable George J. Coogan, Director 

Massachusetts Gas Regulatory Boc'd 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Sir: 

You have requested my opinion as to the authority of the Massachu- 
setts Gas Regulatory Board and of the Gas Inspector of the town of 
Plymouth as to inspections of trailers, mobile homes and recreational 
vehicles. At the present time, the Arnold Trailer Company, with a place 
of business in Plymouth, is the only manufacturer of such vehicles 
within the Commonwealth. The present controversy involves inspection 
of the gas fittings which arc found in this company's trailers and mobile 
homes. 

The authority of gas inspectors is established in G. L. c. 143. § 30. 
which states that "[ejach city and town shall provide by ordinance or 
by-law for the appointment of an inspector of gas piping and gas ap- 
pliances in buildings . . ."' A building is defined by G. F. c. 143. § 1 as 



80 P.D. 12 



"a combination of any materials, whether portable or fixed, having a 
roof, to form a structure for the shelter of persons, animals or prop- 
erty." As such, the vehicles or mobile homes manufactured by the com- 
pany involved, fall into this definition and are within the inspecting au- 
thority of the local inspector. [See as to a recent interpretation of a 
mobile home as a conventional home or building, Ellis v. Board of As- 
sessors of Acushnet, 358 Mass. 473 (1970)]. 

A question is raised by the manufacturer as to the authority of the 
local gas inspector to inspect the trailers while they are within the pre- 
mises of the company, rather than at their principal place of garaging. I 
am of the opinion that consistent with the statutory authority given to 
the Gas Regulatory Board and the local gas inspectors, such inspections 
can take place. The statutes as presently existing today were principally 
enacted to meet the inspection needs of permanent and fixed structures 
— not mobile vehicles like many of the products of the manufacturer. 
However, this does not detract from the fact that pursuant to the exist- 
ing statutory definition of a building, G. L. c. 143, § 1, quoted above, a 
travel trailer or a mobile home is included and as such can be inspected. 
Under the present statutory scheme, it is within the jurisdiction of the 
state regulatory authorities to have an interest in the inspection and reg- 
ulation of these vehicles which are becoming increasingly more popular 
and prevalent throughout the Commonwealth. Considering both the 
mobile nature of these vehicles, and the danger factor which exists if gas 
fittings within these vehicles are not properly operating, it is appropriate 
that they be inspected at the place of manufacture by a licensed gas fit- 
ter. 

While in my opinion authorized inspectors have statutory authority to 
inspect gas fittings at the place of manufacture, the Board may wish to 
promulgate regulations before exercising its authority in this particular. 
The correspondence accompanying your opinion request indicates that 
uncertainty as to the Board's authority in this area, both on the part of 
the Board and on behalf of industry, led to discussions by all interested 
parties as to possible appropriate regulations. The Board might wish to 
elaborate on its statutory mandate by adopting specific regulations 
which would eliminate any ambiguities occasioned by the broad statu- 
tory language. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 81 

Number 20 November 13, 1973 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston. Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion whether or not the Commission for 
the Blind would be eligible to be awarded the contract for the purchase 
by the Supervisor of Public Records, Commonwealth of Massachusetts, 
of ink-filled cartridges. 

In considering your question, the provisions of G. L. c. 66, § 2 are 
applicable as to whether or not the Supervisor of Public Records can 
advertise for proposals as stated in your request. That section provides: 
"The supervisor of records shall advertise for proposals to 
furnish the several departments and offices of the common- 
wealth, and of the counties, cities or towns in which public 
records are kept, with ink of a standard, and upon conditions, 
established by him, at such periods and in such quantities as 
may be required, and he may make contracts therefor. . . ." 
Furthermore, G. L. c. 6, § 134 provides: 

"The state purchasing agent, such officers in charge of 
state institutions as may be authorized by him to make pur- . 
chases and officers in charge of other public institutions shall 
purchase brooms, mops and other supplies, other than pro- 
ducts of prison labor, from the commission of the blind; pro- 
vided, that the commission has the same for sale and that 
they were produced by persons under the supervision of the 
commission or in industrial schools or work shops under its 
supervision ..." 
It seems clear that the Commission for the Blind would be eligible to 
be awarded the contract for the purchase of ink-filled cartridges by the 
Supervisor of Public Records, provided, that the Commission has the 
same for sale, and that they were produced by persons under the super- 
vision of the Commission or in industrial schools or work shops under 
its supervision. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



82 P.D. 12 

Number 21 November 15, 1973 

Honorable Robert L. Meade, Chairman 

Department of Public Utilities 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Chairman: 

You have requested my opinion as to whether the Department of Pub- 
lic Utilities (hereafter "Department") has jurisdiction to regulate rates 
in the sale of synthetic natural gas (hereafter "SNG") by a wholly 
owned subsidiary to its parent. You have informed me that Algonquin 
Gas Transmission Company (hereafter "Algonquin") has a wholly 
owned subsidiary, Algonquin SNG, Inc. (hereafter "Algonquin SNG"), 
which subsidiary was created to produce SNG for sale to Algonquin and 
through Algonquin* for resale to distributors and eventually to consum- 
ers. 

The Algonquin SNG plant is located in Freetown, Massachusetts, 
and the gas manufactured there will be sold to Algonquin in Massachu- 
setts. You have also provided me with a memorandum submitted to the 
Department by Algonquin; for the purposes of this opinion, I assume 
that the additional facts disclosed therein are as stated. 

I. The threshold consideration is whether the Legislature has invested 
the Department with the power to regulate rates in the instant circum- 
stances. General Laws, c. 164, § 1 defines "gas company" as "a corpo- 
ration organized under the laws of the commonwealth for the purposes 
of making and selling, or distributing and selling, gas within the com- 
monwealth . . ." Since neither Algonquin nor Algonquin SNG are 
domestic corporations, neither falls within said section. However, I am 
of the opinion that Algonquin and Algonquin SNG each constitute a 
"gas company" within the meaning of G. L. c. 164, § 2. That section 
provides in relevant part: 

"In construing sections seventy, seventy-one, seventy-four 
to eighty-three, inclusive, ninety-two to ninety-five, inclusive, 
. . . unless the context otherwise requires, the terms 'corpo- 
ration', 'gas company' and 'electric company' shall include 
all persons, firms, associations and private corporations 
which own or operate works or a distributing plant for the 
manufacture and sale or distribution and sale of gas for heat- 
ing and illuminating purposes, or of electricity, within the 
commonwealth . . ." 
A foreign private corporation is a "gas company" for purposes of the 
enumerated sections when the corporation engages in the activities 
specified in said c. 164, § 2. The rate regulatory sections, sections 94-95, 
are among those enumerated. Algonquin owns and operates "works" 

'Algonquin, a natural gas company under the Natural Gas Act (15 U.S.C. § 717) by reason of its transportation and sale 
for resale of natural gas in interstate commerce, owns a natural gas pipeline the main line of which extends from Lam- 
bertville. New Jersey to Boston. Massachusetts. 



P.D. 12 83 

for the 'distribution and sale of gas for heating and illuminating pur- 
poses"" within the Commonwealth. Similarly, Algonquin SNG manufac- 
tures and sells gas for heating and illuminating purposes within the 
Commonwealth. That the gas sold by Algonquin SNG to Algonquin is 
subsequently resold to various distributors does not preclude such a 
construction. 2 Op. Atty. Gen. 311 (1902). 

Nothing contained in said §§ 94-95 suggests that the Legislature de- 
sired to exempt the sale of the entire output of the plant of a 
corporation's subsidiary to its parent. In fact, § 94B evidences a desire 
to control such dealings. That section states in part: 

"No gas or electric company shall, without the approval of 
the department, hereafter enter into a contract with a com- 
pany related to it as an affiliated company, as defined in sec- 
tion eighty-five . . . unless such contract contains a provision 
subjecting the amount of compensation to be paid thereunder 
to review and determination by the department in any pro- 
ceeding brought under section ninety-three or ninety-four 

The legislative history of this enactment is of similar purport: 

"We . . . feel that supervision of the intercorporate con- 
tracts of gas and electric companies is vitally necessary. The 
number of such contracts between affiliated companies is so 
large and the forms of affiliation so devious that the only 
practicable way of regulating contracts where there is an in- 
equality of bargaining power is to give the Department con- 
trol over all contracts. We emphatically recommend legisla- 
tion to this effect." Report of Massachusetts Special Com- 
mittee on Control and Conduct of Public Utilities (1930) at 
82. 
The relationship between Algonquin and Algonquin SNG falls within 
the definition of affiliated company contained in c. 164, § 85. An 
affiliated company "shall include any corporation, society, trust, as- 
sociation, partnership or individual (a) controlling a company subject to 
this chapter . . . either directly . . .or indirectly ... or (c) standing in 
such a relation to a company subject to this chapter that there is an ab- 
sence of equal bargaining power ... in respect to their dealings and 
transactions." Algonquin and Algonquin SNG are affiliates of each 
other within the meaning of said section. 

Neither does a 1902 Opinion of the Attorney General demand the 
conclusion that your Department may not regulate here. In that Opin- 
ion, 2 Op. Atty. Gen. 311, one of my predecessors ruled that the New 
England Gas and Coke Company, an unincorporated association of in- 
dividuals engaged in the manufacture and sale of its entire product of gas 
to the Massachusetts Pipe Line Company (which in turn sold and deliv- 
ered the gas so received to companies engaged in the sale and distribu- 
tion of gas to consumers) was not subject to the jurisdiction of the Gas 
and Electric Light Commissioners. The statutory grant of jurisdiction 
pertinent to that Opinion extended "to all persons owning or operating 



84 P.D. 12 

works for the manufacture and sale of gas for heating or illuminating 
purposes within the Commonwealth." That Opinion observed: 

"... Although the business of the company in question is 
to not sell its product directly for heating or illuminating pur- 
poses, but to a corporation for the purpose of sale and dis- 
tribution by that corporation for those purposes, and is there- 
fore not strictly within the terms of [that section], yet, for the 
purposes of this opinion, I assume that the language of the 
section is broad enough to include the individuals composing 
the company in question. They are . . . engaged in the man- 
ufacture and sale of gas intended to be used for heating or 
illuminating purposes . . ." (Emphasis supplied.) 

The initial point worthy of note is that my predecessor assumed the 
statutory language to be broad enough to cover sales for resale by com- 
panies engaged in the manufacture and sale of gas intended to be used 
for heating and illuminating purposes. Although that Opinion concluded 
that the rationale of the regulatory statute involved argued against regu- 
lation, the basis of such a ruling was the view that the regulations appro- 
priate for quasi public corporations would be intolerable as applied to a 
private individual carrying on a business not connected with the public: 
"But when there is no possible relation between the gas 
manufacturer and the public, the justification for the regula- 
tion so imposed is entirely wanting . . . [I]t is not to be pre- 
sumed, unless the intention be clearly expressed, that it was 
the purpose of the Legislature to impose upon an individual 
enjoying no public rights, and having no relations with the 
public, a supervision so extraordinary and minute ..." 2 Op. 
Atty. Gen. 314-315. 
In the instant case, there is a relation between Algonquin SNG and 
the public: the price charged by Algonquin SNG to its parent becomes a 
cost component of the parent which is passed on to consumers. Since 
Algonquin SNG is a wholly owned subsidiary, Algonquin has no incen- 
tive to enter contracts for SNG at the lowest possible cost. In fact, a 
disincentive dominates. By entering a contract with Algonquin SNG for 
the highest possible cost which will meet with FPC approval in rate 
cases establishing Algonquin's resale price of SNG, Algonquin can pass 
on costs to consumers and simultaneously benefit from the profit accru- 
ing to Algonquin SNG. 

More importantly, no presumption need be engaged in that the Legis- 
lature intended to impose regulation upon companies such as Algonquin 
SNG. Chapter 164, § 94B discloses an unequivocal legislative purpose 
to regulate contracts between affiliated companies such as Algonquin 
and Algonquin SNG. 

In sum, I am of the opinion that the Department does have jurisdic- 
tion over the sales of SNG from Algonquin SNG to its parent. 

II. Having stated that G. L. c. 164 invests the Department with juris- 
diction compels me to consider whether such an interpretation con- 



P.D. 12 85 



travenes any provision of the Federal constitution, particularly Article I, 
Section 8, Clause 3 (the "Interstate Commerce Clause"). That sales of 
SNG from Algonquin SNG to Algonquin are sales in interstate com- 
merce even though the SNG is produced wholly within Massachusetts 
and even though the transfer of title and possession occurs wholly within 
Massachusetts appears beyond dispute. Panhandle Eastern Pipe Line 
Co. V. Public Service Commission, 332 U.S. 507, 512; Public Utilities 
Commission v. Attleboro Steam & Electric Co., 273 U.S. 83; Peoples 
Natural Gas Co. v. Public Service Commission, 270 U.S. 550, 554. 

The instant factual situation is analogous to that in Missouri ex rel. 
Barrett v. Kansas Natural Gas Co., 265 U.S. 298. There the Supreme 
Court held that the sale and delivery of natural gas to distributing com- 
panies which then sold and delivered the gas to various local customers 
was not subject to regulation by the Public Utilities Commission of Mis- 
souri because that sale and delivery to the distributing companies was 
"an inseparable part of a transaction in interstate commerce — not local 
but essentially national in character — and enforcement of a selling price 
in such a transaction places a direct burden upon such interstate com- 
merce inconsistent with that freedom of interstate trade which it was the 
purpose of the commerce clause to secure and preserve." Although dis- 
tinctions exist between the Kansas Natural Gas factual situation and 
Algonquin's, none are determinative. The fact remains that Department 
regulation of sales from Algonquin SNG to its parent raises the spectre 
of directly burdening interstate commerce. 

Because of cases such as Kansas Natural Gas, Congress in 1938 
enacted the Natural Gas Act (15 U.S.C., § 717) to close the gap created 
by judicial prohibition of state regulation. In Panhandle Eastern Pipe 
Line Co., supra, the Supreme Court at 514-516 discussed the legislative 
history of the Natural Gas Act and of the judicial history stimulating its 
enactment: 

"[A]s the (judicial) decisions stood in 1938, the states could 
regulate sales direct to consumers, even though made by an 
interstate pipe-line carrier . . . On the other hand, sales for 
resale, usually to local distributing companies, were beyond 
the reach of state power, regardless of the character of the 
ultimate use. This fact not only prevented the states from 
regulating those sales but also seriously handicapped them in 
making effective regulation of sales within their authority. 

"The impotence of the states to act in relation to sales for 
resale by interstate carriers brought about the demand for 
federal regulation and Congress' response in the Natural Gas 
Act." 
In short, the demarcation line between permissible and impermissible 
state regulation is drawn between sales for use, of whatever kind, and 
sales for resale. Panhandle Eastern Pipe Line Co., supra, at 520. 

The crux of the present problem lies in the reluctance of the Federal 
Power Commission (contrary to recommendation of its staff) to assume 
jurisdiction in this area — this in a time of dire predictions of natural gas 



86 P.D. 12 



shortages. The FPC has interpreted the Natural Gas Act as not apply- 
ing to SNG because SNG is artificial and not "natural gas" as defined 
in the Act, 15 U.S.C., § 717(a) (5). Algonquin SNG Inc., Opinion No. 
637, FPC. Consequently, sales from Algonquin SNG to its parent are 
not subject to direct FPC regulation — although the FPC has indicated 
that approval of Algonquin's resale of SNG will be conditioned upon its 
selling SNG at a maximum initial rate. 

The opinion of the FPC that SNG is not within the ambit of the term 
"natural gas" might be challenged. FPC v. Louisiana Power & Light 
Co., 406 U.S. 621, offers support for a contrary holding. There the Su- 
preme Court held that the FPC had jurisdiction in a borderline area: 
"Although federal jurisdiction (under the Natural Gas Act) 
was not to be exclusive, FPC regulation was to be broadly 
complementary to that reserved to the States, so that there 
would be no 'gaps' for private interests to subvert the public 
welfare." 406 U.S. at 631. 
Louisiana Power & Light illustrates the Court's inclination to interpret 
the Natural Gas Act as plugging all the gaps in regulation. Accord, 
Federal Power Commission v. East Ohio Gas, 338 U.S. 464 at 472. 

In conclusion, while I am of the opinion that the Department has 
jurisdiction under G. L. c. 164 to regulate sales between Algonquin 
SNG and Algonquin, the exercise of such jurisdiction is subject to Fed- 
eral constitutional attack, which attack, in my view, would be success- 
ful. I reach this conclusion even though, regrettably, a regulatory gap 
may exist under the Federal Power Commission decisions to which I 
have referred. However, as of this writing, the extent and scope of such 
a gap is far from clear. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 22 November 20, 1973 

Mrs. Glendora M. Putnam, Chairman 
Massachusetts Commission Against 

Discrimination 
120 Tremont Street 
Boston, Massachusetts 02108 

Dear Mrs. Putnam: 

You have requested my opinion on the question whether the Depart- 
ment of Education may legally require, as a condition of school con- 
struction grants, that local school authorities include in all school con- 
struction contracts a provision requiring affirmative action in regard to 
the employment of minorities. 



P.D. 12 87 



The Department of Education seeks to derive authority for such ac- 
tion from the Governor's Executive Order #74, the so-called Code of 
Fair Practices. The Executive Order, issued as "the governing and guid- 
ing policy of the Executive Branch of the Government of the Common- 
wealth of Massachusetts," purports to insure equality of opportunity in 
the internal affairs of state government, binding "all agencies and ap- 
pointing authorities of the Commonwealth." 

The construction of school buildings is a task delegated principally to 
local municipalities and agencies thereof, with only indirect contact by 
the Department of Education, whose activity would be under the gui- 
dance of the Executive Order. General Laws, c. 71, § 68 states that 
every town shall provide and maintain a sufficient number of 
schoolhouses. properly furnished and conveniently situated for the ac- 
commodation of all children entitled to attend the public schools. The 
construction and maintenance of schoolhouses seems to fall under the 
classification of a local matter which the Home Rule amendment to the 
Massachusetts Constitution (Article LXXXIX of the Amendments), 
places under the control of the cities and towns, subject only to the 
standards and requirements of the General Court. The Executive Order 
appeared without any accompanying legislation binding municipalities 
and agencies thereof, and, at the present time, the Legislature has not 
imposed any such affirmative action plan on local authorities. 

Although the mandate of c. 71, § 68 extends to local authorities, the 
Department of Education has the right to insist upon certain policy and 
conditions in regard to school construction grants, including conditions 
relating to approval of locally submitted construction plans and financial 
arrangements, but not extending to the employment practices of the con- 
tractors who bid on the work. As such, in that the contract for construc- 
tion is one between a municipality or agency thereof and a private con- 
tractor, and only receives state approval as to certain of its aspects. Ar- 
ticle IV of Executive Order #74. entitled "State Contracts," would not 
be applicable. Further, although the contract for school construction 
would be governed by G. L. c. 149, § 44A, as a contract for the con- 
struction of a building by a governmental unit of the Commonwealth (as- 
suming a greater than $2,000 construction cost), that chapter pertains 
not to employment practices, but rather to the assurance of fair competi- 
tion in the bidding process itself. 

The Department of Education is further involved in the construction 
of school buildings by the activity of the School Building Assistance 
Bureau, which provides financial assistance to cities and towns for the 
construction of school buildings. This Bureau was originally established 
as the School Building Assistance Commission by St. 1948, c. 645 and 
was within the Department of Education, but not subject to its control. 
However, St. 1965, c. 572, § 42 abolished the Commission, conferring 
its powers, duties and liabilities on the Board of Education. 

In order for a municipality to receive financial assistance to meet the 
cost of school construction, the local governmental unit must file an ap- 
plication in the form prescribed by the Bureau accompanied by any in- 



P.D. 12 



formation that the Bureau may require. Appendix to G. L. c. 70, § 1-7. 
The Bureau may examine such application and any facts, estimates or 
other information relative thereto, and determine whether the proposed 
construction is in the best interests of the local unit "with respect to its 
site, type of construction, sufficiency of accommodation, and other- 
wise." Appendix to G. L. c. 70, § 1-8. Although the Department of 
Education, in regard to its own projects, follows the guidelines of Ex- 
ecutive Order #74 and establishes affirmative action programs, the 
duties of the School Building Assistance Bureau as stated in § 1-8 of the 
Appendix to c. 70, in passing upon local applications, are limited to mat- 
ters such as construction, location and accommodation; the words "and 
otherwise" in § 1-8 should, in my opinion, be interpreted in line with 
such, and not extended to include the employment practices of the con- 
tractors or subcontractors employed on the project. 

I do not view either the Department of Education's mandate to super- 
vise all of the educational work of the Commonwealth, G. L. c. 69, §1, 
or any action taken pursuant to Executive Order #74 to more equitably 
utilize qualified minority employees of the Commonwealth in the con- 
struction industry, or the Department's control over the disbursement of 
funds through the School Building Assistance Bureau as lending a suffi- 
cient amount of "state action" to a proposed local school construction 
contract so as to include it under Article IV of the Executive Order. 
Neither would the failure to initiate an affirmative action program on 
such a construction project cause the state to become a joint participant 
with private persons, the contractors, in a pattern of racially dis- 
criminatory conduct, prescribed by the Fourteenth Amendment. As 
such, the present situation is distinguishable from the line of cases 
stemming from Burton v. Wilmington Parking Authority, 365 U.S. 715 
(1961), and including Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 
1967). 

There are legal precedents which require affirmative action programs 
where federally assisted construction projects are involved. See 
Contractors Association of Eastern Pennsylvania v. Shultz, 311 F. 
Supp. 1002 (E.D. Penn. 1970), (upholding the "revised Philadelphia 
Plan" which implemented the Presidential Executive Order No. 11246). 
A recent U. S. District Court, District of Massachusetts decision, 
Associated General Contractors of Mass. Inc. et al. v. Alan Altshuler et 
al., Civil Action No. 72-3410-F (May 31, 1973), upheld as constitutional 
the inclusion of affirmative action language in public construction con- 
tracts of the Commonwealth. However, the question presented here in- 
volves neither a federal nor a state construction project, but rather a 
project under the control of a local municipality of the Commonwealth. 
In such circumstances, the Department of Education would be power- 
less to enforce against a municipality, or an agency thereof, any affirma- 
tive action plan with respect to minority employment, due to the inap- 
plicability of Executive Order #74, and the lack of statewide statutory 
implementation of such a policy by the General Court. Until the neces- 
sary legislation is enacted by the General Court, any affirmative action 



P.D. 12 89 



at the municipal level must be put into effect solely on a voluntary basis 
with the various municipalities of the Commonwealth. 

For the foregoing reasons, I am of the opinion that the Department of 
Education may not legally require, as a condition of school construction 
grants, that local school authorities include in all school construction 
contracts a provision requiring affirmative action in regard to the em- 
ployment of minorities. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 23 November 30, 1973 

Honorable Arnold R. Rosenfeld, Chairman 
Criminal History Systems Board 
Room 740, 80 Boylston Street 
Boston, Massachusetts 02116 

Dear Chairman Rosenfeld: 
You have requested my opinion concerning the following questions: 
"1. do M.G.L. c. 6 sees. 167-178, inclusive, restrict the dissemina- 
tion of some or all court records and papers by clerks of the 
courts of the Commonwealth, which might otherwise be open 
to public inspection pursuant to M.G.L. c. 4 sec. 7 par. 26, c. 
66 sec. 10, c. 218 sec. 12 and c. 221 sec. 14; 
"2. what information maintained or obtained by the courts may 
not be disseminated by the clerks of court to unauthorized par- 
ties pursuant to M.G.L. c. 6 sees. 167-178, inclusive; and 
"3. what information may be disseminated by the clerks of court 
to the general public in spite of M.G.L. c. 6 sees. 167-178, in- 
clusive?" 
Massachusetts General Laws, c. 6, §§ 167-178, known as the Criminal 
Offender Record Information System Act (hereinafter "the Act"), be- 
came law pursuant to St. 1972, c. 805 and took effect on September 19, 
1972. It is important to note at the outset that this Act regulates only one 
kind of information — criminal offender record information — and no 
other. With respect to criminal offender record information, the Act 
provides: 

"Criminal offender record information shall be dissemi- 
nated, whether directly or through any intermediary, only to 
(a) criminal justice agencies and (h) such other individuals 
and agencies as are authorized access to such records by sta- 
tute." G. L. c. 6, § 172. 

As a starting point in answering the three questions you ask, it is clear 
that the Act prohibits the dissemination of criminal offender record in- 
formation to the general public but does not restrain the dissemination of 



90 P.D. 12 



any other kind of information. It follows that the three questions asked 
are in substance one question: to what extent are court records and pa- 
pers criminal offender record information? 
This term is defined in the Act as: 

"... records and data compiled by criminal justice agen- 
cies for purposes of identifying criminal offenders and of 
maintaining as to each such offender a summary of arrests, 
pretrial proceedings, the nature and disposition of criminal 
charges, sentencing, incarceration, rehabilitation and release. 
Such information shall be restricted to that recorded as the 
result of the initiation of criminal proceedings or of any con- 
sequent proceedings related thereto. It shall not include intel- 
ligence, analytical and investigative reports and files, nor 
statistical records and reports in which individuals are not 
identified and from which their identities are not ascertain- 
able." G. L. c. 6, § 167. 

The above-quoted definition limits the concept of criminal offender 
record information to information compiled: (1) by "criminal justice 
agencies" and (2) for the stated purposes. "Criminal justice agencies" 
are defined in G. L. c. 6, § 167 as 

"those agencies at all levels of government which perform 
as their principal function, activities relating to (a) crime pre- 
vention, including research or the sponsorship of research; 
(b) the apprehension, prosecution, adjudication, incarcera- 
tion, or rehabilitation of criminal offenders; or (c) the collec- 
tion, storage, dissemination or usage of criminal offender re- 
cord information." 
By this definition, police departments, district attorneys' offices, proba- 
tion departments, and similar agencies are clearly criminal justice agen- 
cies because their principal function relates to crime. Accordingly, 
summaries of criminal arrest information relating to individuals prepared 
by such agencies would clearly constitute criminal offender record in- 
formation and court clerks may not disseminate such summaries or any 
part of such summaries to the public. 

Other items of information will, inevitably, be harder to classify under 
the statutory definition of criminal offender record information. In each 
case, it must be determined whether the information in question was 
compiled by a "criminal justice agency" and whether it is the kind of 
summary information regulated by the Act. Having stated these general 
principles, I think it would be inappropriate for me to attempt to antici- 
pate and to classify the many kinds of information a clerk of court may 
come to possess. Each case must be decided upon its own facts. 

I will, however, state my opinion concerning the application of the 
Act to court records prepared by the clerks of court themselves. The 
Act does not state whether the courts or the clerks of courts are "crimi- 
nal justice agencies" within its terms. This would appear to depend 
upon whether the court or its clerk "perform[s] as [its] principal function 



P.D. 12 



activities relating to . . . (h) the apprehension, prosecution, adjudication, 
incarceration or rehabilitation of criminal offenders." G. L. c. 6, § 167. 
Some court clerks attend to criminal business as their principal function; 
others attend solely to civil business; others attend to criminal and civil 
business co-equally. Compare G. L. c. 218, § 69 to § 70 and § 75A to § 
79. Depending upon their particular functions, some court clerks may 
thus be "criminal justice agencies" within the meaning of the Act and 
others may not, but I find it unnecessary to decide that question now. 

Even if one assumes that the records kept by court clerks are "com- 
piled by criminal justice agencies" within the meaning of the Act, it is 
my opinion that such records do not meet the other criteria of criminal 
offender record information. Criminal offender record information is in- 
formation compiled and summarized with respect to a particular indi- 
vidual. While probation officers have explicit statutory authority to 
compile comprehensive criminal records of individuals, court clerks do 
not. Court clerks are authorized only to make records which concern the 
particular courts they serve. Compare G. L. c. 276, § 85 with c. 221, § 
14 and c. 218, § 12. Such records may be indexed by the names of plain- 
tiffs and defendants and may, in a sense, summarize the court record of 
a particular individual. But so long as such records list only cases 
brought in the court which the clerk serves, it is my opinion that such 
records would not be the kind of comprehensive compilations and sum- 
maries which the Act seeks to regulate. 

I therefore answer your three questions together by saying that the 
Act prohibits public dissemination of criminal offender record informa- 
tion, as I have construed that term, but does not restrain court clerks 
from disseminating any other kind of information.' 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 24 December 3, 1973 

Honorable Alfred F. Nataloni 
Director, Division of Marine 

& Recreational Vehicles 
64 Causeway Street 
Boston, Massachusetts 02114 

Dear Mr. Nataloni: 

You have requested my opinion whether "prior to the enforcement 
and/or application as against [any person] of Section 4, Article 16 enti- 
tled 'Regulation of Boating' of the By-laws of the Town of Sharon, as 
amended, the Town of Sharon is required to obtain the approval of the 
Director of Marine and Recreational Vehicles in accordance with the 
provisions of Massachusetts General Laws, Chapter 131, Section 45, 
and/or Chapter 90B, Section 15 (a) (b) (c), as the case may be." 

'My opinion is not altered by the recent amendments to the pubhc records law. St. 1973. c. 1050. The new statute ex- 
empts from the definition of public records ■'materials . . . specifically or by necessary implication exempted from dis- 
closure by statute. " Criminal offender record information comes within this exemption. 



92 P.D. 12 



The by-law of the town of Sharon, in question, provides as follows in 
Article 16: 

"After April 1, 1973, no person shall operate a boat on 
Lake Massapoag powered by internal combustion engines 
whose total horse power rating at time of original manufac- 
ture exceeds sixty (60) horsepower, except as approved by 
the Board of Selectmen for safety or rescue purposes." 
(Added under Article 26 of the Warrant for the 1972 Annual 
Town Meeting.) 
On May 8, 1972, I approved the by-law, stating, through my staff, as 
follows: 

"The by-law adopted under Article 26 does not appear to 
require the approval of the Division of Recreational Vehicles 
since it does not regulate the operation of motorboats, but 
prohibits the use of boats of over sixty horsepower. It must 
be presumed that this is done in pursuance of G.L., c. 40, s. 
21 (1), empowering towns to make by-laws respecting their 
internal police." 
On May 18, May 25 and June 1, 1972 the by-law was published in the 
Sharon Advocate, a newspaper published in Sharon, and became effec- 
tive on June 1, 1972, if the approval of your Division was not necessary, 
or, if necessary, was improperly withheld. 

Under date of August 22, 1972, in a letter to the then Director of the 
Division of Marine and Recreational Vehicles, the Executive Secretary 
of the Town of Sharon set forth the vote embodying the by-law in ques- 
tion, attaching to the letter the "approval of said by-law by the Attorney 
General," and concluded with the statement: "Your approval is re- 
quested." 

Under date of October 5, 1972, an Assistant Director of your Division 
replied as follows: 

"With reference to your correspondence dated September 
21, 1972, relative to Mr. Bamber's letter of August 22 on the 
amended Article 26 to the Motorboat Bylaws of the Town of 
Sharon, it is the opinion of this Division that it is not the size 
of the motor of a boat which creates the problem, but rather 
the manner in which the boat is operated. Therefore, 
amended Article 26 is most respectfully denied." 

The relevant statutes are as follows: 
G. L. c. 90B. 

"§ 11. The director shall administer and enforce the provi- 
sions of this chapter, and, for such purposes, is authorized to 
make rules and regulations not contrary to the laws of the 
Commonwealth or of the United States. He shall (1) submit 
to the secretary for his approval a numbering system for 
motorboats, and (2) require that all applications for number, 
certificates of number, and reports of boating accidents con- 



P.D. 12 93 

tain the same information as that contained in similar docu- 
ments of the Coast Guard. 
He may — 



(A.) Make the provisions of this chapter and rules and regu- 
lations made under authority thereof and such other rules and 
regulations as he may deem in the interest of the public safety 
applicable to any vessel not otherwise subject to the provi- 
sions of this act when operated or maintained on any waters 
lying wholly within the land boundaries of the Common- 
wealth, except ponds less than ten acres in area and owned 
by one person. 

***** 

in) Approve or disapprove any ordinance or by-law of any 
city or town which regulates the operation of such vessels 
and such activities as are subject to the provisions of this 
chapter or of any rule or regulations made under authority 
hereof, on such waters of the Commonwealth as lie within 
such city or town. 

***** 

"§ 15. (a) The provisions of this chapter shall govern the 
numbering, operation, equipment and all other matters relat- 
ing thereto of any vessel subject to the provisions of this 
chapter or of any rule or regulation made under authority 
hereof, whenever any such vessel shall be operated or main- 
tained on the waters of the Commonwealth, or whenever any 
activity regulated by said chapter or said rules and regulations 
shall take place thereon. 

(/?) Nothing in this section shall be construed as prohibiting 
any city or town from regulating, by ordinance or by-law, not 
contrary to the provisions of this chapter or of any rule or 
regulation made under authority hereof, other than number- 
ing, of such vessels on such waters of the Commonwealth as 
lie within the city or town, or such activities which take place 
thereon . . . 

(c) No such ordinance or by-law shall be valid unless it 

shall have been approved by the director and published in a 

newspaper of general distribution in said city or town not less 

than five days before the effective date thereof." 

St. 1960, c. 275, which inserted c. 90B into the General Laws, 

vided in section 4 of c. 275 as follows: 

"SECTION 4. Any ordinance, by-law or regulation of any 
city, town or other public body or authority relative to the 
identification of motorboats or other vessels shall become 
null and void upon the effective date of this act, and any such 



94 P.D. 12 

ordinance, by-law or regulation relative to the operation of 
motorhoats or other vessels shall become null and void on the 
ninetieth day following said effective date." (Emphasis sup- 
plied.) 
General Laws, c. 131, § 45 provides as follows: 

"§ 45. [EJvery great pond . . . shall be public for the pur- 
pose of hunting or boating thereon and shall be open to all 
inhabitants of the Commonwealth for fishing purposes; pro- 
vided, that any city or town in which the whole or any por- 
tion of any great pond not exceeding five hundred acres in ex- 
tent is situated may, as to so much thereof as is located 
within its boundaries, make and enforce rules and regulations 
relative to hunting, fishing and boating thereon. Any such rule 
and regulation relative to boating may include, on all or any 
portion of said pond, for all or any portion of the year, any of 
the following: a speed limit, a limit on engine horsepower, a 
prohibition of the use of internal combustion engines, a ban 
on water skiing and other high speed uses, and a limitation of 
such uses to certain areas and certain times. Any such rules 
and regulations shall, to the extent that they authorize hunt- 
ing or fishing, or both, be subject to the approval of the direc- 
tor, and, to the extent that they authorize any other use 
thereof, be subject to the approval o/the department of pub- 
lic works or the director of the division of motorboats, as the 
case may be. All persons shall be allowed reasonable means 
of access to such ponds for the purposes aforesaid." 
The portions of section 45 underlined by hatching were added by St. 
1971, § 498. The solid underscoring which appears is inserted herein for 
later reference. 

The Department of the Attorney General has consistently taken the 
position that a prohibition of a boating activity does not fall within the 
provisions of G. L. c. 131 , § 45, relating to Great Ponds, or of G. L. c. 
90B, § 15, relating to "waters of the Commonwealth as lie within" a city 
or town and that, therefore, a by-law prohibiting such uses adopted pur- 
suant to the authority conferred by G. L. c. 40, § 41, is valid without the 
approval of the Director of the Division of Marine and Recreational 
Vehicles of the Registry.* Reference is made to opinion of my staff 
dated June 31, 1966, to the Town Clerk of Concord (prohibition by town 
by-law of operation and use of any internal engine in or upon the portion 
of White Pond in the Town of Concord); letter dated June 15, 1966 to 
Wilton J. Vaugh, Director, Division of Motor Boats, confirming this 
opinion as to White Pond); letter dated August 13, 1968 to Albert H. 
Zabriskie, Public Access Board, concerning prohibition by by-law of 
Town of Wellesley of internal combustion engines on the portion of 
Morse's Pond within said town; and letter dated May 8, 1972, approving 
the Sharon by-law here in question. 

•Formerly the Director of the Division of Molorhoats. Ci I c 16. :is nmended bv St. 1971. c. 10.1. § ^■. G. 1.. c 908. § 
I. as amended hy St. 1971, c. 103. § ^. 



P.D. 12 95 



The Sharon by-law prohibiting the operation of a motorboat with a 
horsepower in excess of sixty, in so far as it is so limited, is, in my opin- 
ion, valid without the approval of the Director. 

It is, of course, well settled that every presumption is to be indulged 
in favor of the validity of a by-law. Brown v. Carlisle, 336 Mass. 147, 
148. Prior to the insertion of the underlined second sentence of G. L. c. 
131, § 45 by St. 1971, c. 498, the first sentence of section 45 ended with 
the following proviso: 

"provided, that any city or town in which the whole or any 
portion of any great pond not exceeding five hundred acres in 
extent is situated may, as to so much thereof as is located 
within its boundaries, make and enforce rules and regulations 
relative to hunting, fishing and boating thereon." 
The section went on to provide, in the next to the last sentence, that 
"[a]ny such rules and regulations shall ... to the extent that they au- 
thorize any other use thereof, be subject to the approval of the ... di- 
rector of the division of motor boats . . ." It is to be noted that the pro- 
viso empowers cities or towns to make and enforce "rules and regula- 
tions relative to . . . boating thereon" whereas the requirement for ap- 
proval thereof by the Director applies only "to the extent that they 
authorize any other use thereof." 

The 1971 amendment, which inserted the second sentence expressly 
authorizing rules and regulations imposing a speed limit, a limit on hor- 
sepower, a prohibition of the use of internal combustion engines, a ban 
on water skiing and other high speed uses, and a limitation of such uses 
to certain areas and times, would appear to emphasize the distinction be- 
tween restriction and prohibition on the one hand, and authorization or 
regulation on the other. This distinction also appears in G. L. c. 90B, § 
15(b) and (c), which allows cities and towns to regulate vessels subject 
to the chapter on the waters of the Commonwealth within their bound- 
aries, subject to approval by the director. In my view, the 1971 amend- 
ment to G. L. c. 131, § 45 is confirmatory of the powers of a municipal- 
ity to regulate such activities in the interest of maintenance of peace and 
good order. H^'est Roxhury v. Stoddard, 7 Allen 158, 170-171; 
Commonwealth v. Baronas, 285 Mass. 321, 323; Brown v. Carlisle, 336 
Mass. 147. 

A subsidiary question is raised by the following emphasized language 
in the Sharon by-law: 

"... no person shall operate a boat on Lake Massapoag 
powered by internal combustion engines whose total horse- 
power rating . . . exceeds (60) horsepower, except as ap- 
proved hy the Board of Selectmen for safety or rescue 
purposes." 
If the emphasized language means that motorboats with over a 60 horse- 
power rating may be used if they comply with the requirements imposed 
by the Board of Selectmen for safety or rescue purposes, i.e. as to 
equipment of the vessels or their operation, then this would seem to be a 



96 P.D. 12 



regulation requiring approval by the Director. However, a similar re- 
quirement, admittedly not directly involved in the case cited below, was 
not questioned by the Supreme Judicial Court, which, in Brown v. 
Carlisle, 336 Mass. 146, held valid a by-law which provided that: "No 
person shall fire or discharge any firearms or explosives of any kind 
within the limits of any highway, park or other public property except 
with the permission of the board of selectmen; or on any private prop- 
erty, except with the consent of the owner or legal occupant thereof; 
provided, however, that this by-law shall not apply to the lawful defense 
of life or property nor to any law enforcement officer acting in the dis- 
charge of his duties ..." The Court held that the by-law was not invalid 
on the ground that the field of legislation had been preempted by the 
General Court. It would seem that the emphasized language of the by- 
law was inserted merely for the purpose of controlling the number of 
motorboats and the persons available for rescue and safety; otherwise, 
every owner of a boat over 60 horsepower would claim he was operating 
it for safety or rescue. 

Finally, since the approval of the Director was not required, I deem it 
unnecessary to pass on the validity of the reasons given for the 
Director's disapproval. In my view, the by-law became effective upon 
its publication in May and June of 1972, without regard to the action 
taken on it by your Division. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 25 December 17, 1973 

Honorable William Bicknell, M.D. 
Commissioner of Public Health 
600 Washington Street 
Boston, Massachusetts 02111 

Dear Commissioner Bicknell: 
You have sought my interpretation of St. 1973, c. 843 (inserting a new 

section 127M in Chapter 111 of the General Laws), which provides: 
*'No sewage disposal system shall be constructed or main- 
tained within one hundred feet of any known source of water 
supply or tributary thereto. No sewage disposal system shall 
be constructed within seventy-five feet for a single dwelling, 
or one hundred feet for a multiple dwelling as defined in sec- 
tion one of chapter one hundred and fifty-one B, of any great 
pond, stream, brook, tidal water, river, or swamp, without 
the prior written approval of the department." 

Your questions are: 
(1) Does the provision regarding the prior written approval of the De- 
partment, included in the second sentence of the quoted part, 
apply to the first sentence as well? 



P.D. 12 97 

(2) Does the first sentence of the quoted part apply to all water sup- 
plies, both public and private? 

(3) Does the use of the word "maintain'' in the first sentence of the 
quoted part mean that existing systems must be removed? 

With respect to your first question, I am of the view that the quoted 
language is so clear as to leave no doubt that the approval provision ap- 
plies only to the second sentence. Any other construction would amount 
to a rewriting of the statute. 

An answer to your second question requires a review of the legislative 
history of the act. The original version of the statute, as it appeared in 
H. 6087, provided, in relevant part: 

'"No sewage disposal system shall be constructed or main- 
tained within seventy-five feet for a single dwelling, or one 
hundred feet for a multiple dwelling as defined in section one 
of chapter one hundred and fifty-one B, of any known source 
of water supply, great pond, stream, brook, tidal water, river, 
or swamp, without the prior written approval of the depart- 
ment of public health for such construction." 

However, the Governor was concerned with the bill because it would 
allow construction beyond seventy-five feet for a single dwelling, and 
would inadvertently pre-empt Public Health Regulation 3.2 of Article 
11, Sanitary Code, which prohibits the construction of such systems 
within one hundred feet of "water supplies," that term being parentheti- 
cally equated with "reservoirs." To overcome this problem, the Gover- 
nor recommended that the bill be amended to read as the enacted ver- 
sion now reads, see Message of the Governor to the General Court ac- 
companying H. 7482. The first sentence of the quoted part of the current 
statute, added by the Governor and prohibiting construction or mainte- 
nance of a sewage disposal system within one hundred feet of a water 
supply, would thus appear to be merely a statutory codification of the 
Public Health Regulation. As the regulation is limited to sewage systems 
near "reservoirs," public water supplies, the first sentence of that part 
of the act quoted above should also be construed as being so limited. 

The legislative history of the statute is also relevant to your third 
question. As I have just discussed above, the first sentence of the 
quoted part appears to be a codification of Sanitary Code, Article II, 
Regulation 3.2. That regulation deals only with the creation of new sew- 
age disposal systems. As I believe that the sentence was intended to go 
no farther than the regulation, I am of the view that the use of the word 
"maintain" in the sentence does not mean that existing systems must be 
removed. Rather, I believe that the term was used to cover situations 
where a new building is being erected and its natural surroundings are 
such that no "construction" need actually take place, i.e., that a natural 
sewage system already exists. Furthermore, it is unlikely that the Gen- 
eral Court could have intended that every structure within the Com- 
monwealth whose sewage disposal system passes within one hundred 
feet of a public water supply must now be altered to put an end to such 
passage, at possibly extreme expense to the owner. 



98 P.D. 12 



Accordingly, I answer all of your questions in the negative. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 26 December 17, 1973 

Honorable Louis J. Resteghini 

Director of Registration 

Room 1520, Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Sir: 

The State Examiners of Electricians, through you as the Director of 
the Division of Registration, have requested my opinion as to the follow- 
ing questions: 

(1) May a person, firm or corporation holding a master electrician's 
license form a subsidiary company upon the basis of the original 
examination passed by the person holding the license? 

(2) May a person, firm or corporation hold two licenses on the basis of 
one examination? 

(3) If either or both questions (1) and (2) are answered in the affirma- 
tive, may the Board charge an issuing fee of $25.00 for each com- 
pany and subsidiary company and a renewal fee for each company 
and subsidiary company under the provisions of G. L. c. 141, § 3, 
Paragraphs 3 and 4? 

The provisions of G. L. c. 141, entitled "Supervision of Electri- 
cians", are far from clear on these points. The statute, in section 3, in- 
pertinent part provides: 

"Two forms of licenses shall be issued. The first, hereinafter 
referred to as 'Certificate A,' shall be known as 'master 
electrician's license' . . . 

(1) 'Certificate A' shall be issued to any person, firm or 
corporation engaged in or about to engage in the business of 
installing electrical wires, conduits, apparatus, fixtures and 
other electrical appliances, qualified under this chapter. The 
certificate shall specify the name of the person, firm or corpo- 
ration so applying, and the name of the person, who in the 
case of a firm shall be one of its members, and in the case of a 
corporation, one of its officers, passing said examination, by 
which he or it shall be authorized to enter upon or engage in 
business as set forth therein. . . . 
I am advised that it has been the policy of the State Examiners of 
Electricians to issue one "Certificate A" master electrician's license. 
The certificate holder may (1) operate under his own name and if he de- 
sires to use a "doing business as", provided he is the sole owner of the 



P.D. 12 99 



business, he is permitted to do so; or (2) act as the quaHfying officer in 
one corporation or a partnership. If an individual acting as the quaHfying 
officer chooses to obtain the Hcense for a corporation, the license at- 
taches to the corporate entity. 

The Examiners have informed me that they have received numerous 
inquiries of the following nature which have prompted this opinion re- 
quest. For example, (1) John Jones who was issued a "Class A Certifi- 
cate", master electrician's license on the basis of an examination he 
passed, wishes to operate under the following names under the original 
license issued to him as John Jones: — Jones Electric; Jones Fire Alarm 
Co.; Jones Burglar Alarm Co. (2) On the basis of one examination may 
the following licenses be held: — John Jones (individual); Jones' Electri- 
cal Corp., Inc. (corporation); Jones and Doe Company (partnership). 

My attention has been called to the 1969 amendments to the statutes 
governing the issuance of plumbing licenses, G. L. c. 142, § 3G, in- 
serted by St. 1969, c. 731, § 2, which specifically authorize a person 
licensed as a master plumber to apply "for a certificate of a plumbing 
corporation or a certificate of a plumbing partnership. . . ." It is clear, 
in the case of plumbers, that the General Court has authorized the is- 
suance of multiple licenses on application by a master plumber. How- 
ever, no such authorization is found in the statutes governing the licens- 
ing of electricians. That fact coupled with the long-standing practice of 
the State Examiners to limit licenses as I have described supra leads me 
to the conclusion that, in the case of electricians, multiple licensing is 
not now permissible. Accordingly, I answer questions one and two in 
the negative. No answer is therefore required with respect to the last 
question. 

Nothing in this opinion should be construed, of course, to prevent the 
State Examiners from filing legislation to amend the regulatory statutes 
in order to permit multiple licensing, if that course of action is deemed 
desirable. 

Very truly yours, 

ROBERT H. QUINN 

A ttorney G eneral 

Number 27 December 17, 1973 

Honorable Louis J. Restighini 

Director of Registration 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Mr. Restighini: 

The State Examiners of Electricians, through you, have requested my 
opinion on the following question: 

"Under the provisions of Section 3L of Chapter 143 of the 
General Laws, does the City or Town Inspector of Wires, 



100 P.D. 12 



appointed pursuant to the provisions of Section 32 of Chapter 
166 of the General Laws, inspect electrical work performed 
on state-owned property, other than the State House?" 
Since the Examiners have not submitted specific facts with their re- 
quest, I can only answer in general terms. 1966-67 Op. Atty. Gen. 221. 
For the reasons stated herein, I answer your question in the affirmative. 
My prior opinion to the Director of Building Construction, examining 
several statutory provisions relating to the inspection of electrical wir- 
ing, is dispositive of your inquiry. 1971-72 Op. Atty. Gen. No. 36. That 
opinion reaffirmed an opinion of one of my predecessors in which it was 
stated that G. L. c. 166, § 32, authorizes the appointment of an inspector 
of wires by cities, towns and districts, does not grant said inspector of 
wires jurisdiction over the installation of wiring by the Commonwealth 
in and on property of the Commonwealth. 1957-58 Op. Atty. Gen. 65. 
Simultaneously, however, said opinion reaffirmed an opinion of my pre- 
decessor in which it was stated that, with but few exceptions,^ all build- 
ings and structures, other than the State House, which are owned or op- 
erated by the Commonwealth are subject to the provisions of c. 143 to 
the same extent as if privately owned or operated. 1966-67 Op. Attv. 
Gen. 22\, 222. 

The statutory amendments to G. L. c. 143, §§ 2A and 3L,2 which 
were enacted after my earlier opinion and which are to become effective 
on January 1, 1975, do not require a different conclusion. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 28 December 18, 1973 

Honorable Gregory R. Anrig 

Commissioner of Education 

182 Tremont Street 

Boston, Massachusetts 021 1 1 

Dear Commissioner Anrig: 

You have advised me that the Department of Education is in posses- 
sion of certain types of information such as information contained in ap- 
plications for original licenses, information contained in applications for 
renewal of licenses, and information contained in teacher applications, 
for both Private Trade Schools and Private Business Schools. The mat- 
erial relating to Private Trade Schools has been submitted pursuant to 
G. L. c. 93, § 21B; the Private Business School material has been sub- 
mitted pursuant to G. L. c. 75D, § 4. No representation as to confiden- 
tiality appears on the applications for original license or teacher applica- 



'See 1960-61 Op. Am. (icn. 50. which concludes Ihiit the Mass;ichu\ctts correct ion;il institutions are niit subject to the 
provisions of c. 14.1. § 2A. 

•St. 1972. c. 802. § \y amended G. L. t. 143. § 2A; St. 1972. c. 802. § 18 amended Ci. L. c. 143. § 3L. 



P.D. 12 101 



tions of Private Trade Schools. On the applications for renewal of 
license for such schools, there appears a note, which reads, "The infor- 
mation required by this Report is confidential and is available to others 
only by court order." With respect to Private Business Schools, a 
statement regarding confidentiality, identical in language to that appear- 
ing on Trade School renewal applications, appears on the former's origi- 
nal license and license renewal applications. No statement as to confi- 
dentiality appears on the Business School teacher applications. 

Your question is whether, in light of the above facts, the Department 
of Education may release the information contained in the applications 
to certain segments of the press which have requested it. 

A response to your question involves the initial consideration of 
whether or not the completed applications are "public records", since 
G. L. c. 66, § 10 provides: 

"Every person having custody of any public records shall, 
at reasonable times, permit them to be inspected and ex- 
amined by any person, under his supervision, and shall fur- 
nish copies thereof on payment of a reasonable fee." 
Thus, if the materials are "public records", their release is not only 
permitted but is required by law. 

In so far as is relevant to your situation, "public records" are defined 
in G. L. c. 4, § 7(26) as: 

"any . . . paper . . . of . . . any authority established by the 
general court to serve a public purpose, which is the property 
thereof, and in or on which any entry has been made or is 
required to be made by law, or which any officer or employee 
of . . . such authority has received or is required to receive 
for filing. ..." 
Without considering whether the applications are "papers on which any 
entry has been made or is required to be made by law," within the 
meaning of the section, for the reasons outlined below, I am of the view 
that they are papers which the Department "has received for filing" and 
are therefore "public records." 

Neither my predecessors nor the Supreme Judicial Court has, as a 
general rule, viewed the "received for filing" clause as including within 
its scope all papers which are required by law to be submitted to a state 
agency. Rather, the clause has been construed to include only papers 
required to be submitted by law and intended by the General Court to 
be kept open for public inspection. For example, a predecessor of mine 
concluded that financial returns of natural gas companies, required to be 
filed by statute with the Board of Gas and Electric Light Commission- 
ers, were not public records under R.L. c. 35, § 5, the statutory forerun- 
ner to G. L. c. 4, § 7(26), because the legislative intent in requiring their 
submission was to aid the Board in its task of regulating the companies, 
not to keep the returns on record for public inspection, 1 Op. Atty. Gen. 
186. Similarly, the Supreme Judicial Court, in Round v. Police Commis- 
sioner for the City of Boston, 197 Mass. 218 (1908), ruled that records of 



102 P.D. 12 



pawnbrokers, required by statute to be furnished to the local licensing 
board, were not public records under R.L. c. 35, § 5, because the basic 
reason for requiring their submission was to aid the police in identifying 
the location of stolen goods and to assist the board in its licensing func- 
tion, rather than to bring such records to the view of the public. 

While there must be an indication of a legislative intent to make 
documents submitted to a state agency pursuant to law open to public 
inspection, in recent years a very liberal approach has been taken in as- 
certaining such an intent. This approach was reflected in the opinion of 
the Court in Lord v. Registrar of Motor Vehicles, 1>A1 Mass. 608 (1964). 
There, G. L. c. 90, § 26 required drivers in certain kinds of automobile 
accidents to submit reports to the Registrar. Unlike other sections of the 
motor vehicle statute, section 26 contained no provision as to what the 
Registrar was to do with the reports. In ruling that the reports were pub- 
lic records, the Court recognized that a significant legislative purpose in 
requiring their submission to the Registrar was to enable him to compile 
accident statistics. However, the Court went on to observe that the re- 
ports would be highly useful to the public and other authorities, for ex- 
ample, in the preparation of litigation resulting from the accidents. Since 
public policy indicated that the reports should be open to public inspec- 
tion, the Court inferred an intent to make them so on the part of the 
General Court. 

Applying the Lord analysis to the materials in question here, I have 
noted above that all of the materials relating to Private Trade Schools 
are required to be filed with the Department pursuant to G. L. c. 93, § 
2 IB. That section provides, in relevant part: 

"No person shall operate or maintain a private trade school 
unless he is licensed so to do by the commissioner of educa- 
tion as hereinafter provided. Said commissioner shall not 
issue a license to operate or maintain such a school unless 
and until he shall have approved as to such school the pro- 
posed standards adopted and methods of instruction to be fol- 
lowed, the equipment and housing provided, the training and 
experience of the teachers to be employed, the form and con- 
tents of the student enrolment agreement or contract and the 
method of collecting tuition, nor and unless and until such 
schools shall have filed in the office of said commissioner its 
current advertising, if any. All advertising used by any such 
school subsequent to the receipt of a license hereunder shall 
from time to time be filed in the office of said commissioner. 
No license shall be granted hereunder unless said commis- 
sioner shall determine that the school possesses a sound fi- 
nancial structure with sufficient resources for its proper use 
and support . . . Every such license shall run for one year 
from date of issuance and the fee therefor shall be one 
hundred dollars for an original license and fifty dollars for 
each renewal thereof. Said commissioner may adopt and from 
time to time alter and amend rules and regulations, in con- 
formity with this section, governing such schools and the 



I 



P.D. 12 103 



licensing thereof. Each person operating a private trade 
school shall make an annual report to said commissioner in 
such form as he may prescribe." 

The materials relating to Private Business Schools are required to be 

tiled pursuant to G. L. c. 75D, § 4, which provides: 

"Any person desiring to operate a private business school 
within the commonwealth whose application has been granted 
initial approval by the state auditor pursuant to section three 
shall submit to the commissioner, on a form supplied by him, 
such information as he may require, including but not limited 
to: 

Ui) the training and experience of the instructors employed 
or to be employed by the school; 

(/?) the building facilities and equipment available or to be 
available for the instruction to be offered by the school; 

(r) the form and content of the courses to be offered by the 
school; 

(d) the particular field of instruction to be offered by the 
school; and 

{e) the form of any contract or agreement to be executed by 
a prospective student. 

If, after investigation, the commissioner finds that the ap- 
plicant is qualified to operate a private business school, he 
shall issue a license to such person authorizing the operation 
of such school. 

If the commissioner finds that the applicant is not qualified 
to operate a private business school, he shall refuse to issue a 
license. The commissioner shall state his reasons therefor in 
writing. The applicant shall be entitled to a hearing before the 
commissioner and judicial review subject to the provisions of 
chapter thirty A. 

The commissioner shall also approve each separate course 
of instruction offered by a licensee according to such stan- 
dards or guidelines as may be established by the commis- 
sioner. A licensee shall submit course changes, improve- 
ments and modifications to the commissioner. Course ap- 
proval shall be valid for one year from the date of issue, but 
may be revoked or suspended if the commissioner finds that 
the form or content to the course substantially differs from 
standards or guidelines established by him." 

A reading of the sections set forth above clearly suggests that one 
purpose of requiring submission of the materials is to assist the Commis- 
sioner in determining that the criteria for licensing have been met. How- 
ever, no one can deny that the public has a strong interest in the infor- 
mation contained in the application. Education is of fundamental impor- 
tance to the inhabitants of the Commonwealth. In this regard, certainly, 
everyone should have the opportunity to determine the nature and qual- 



104 P.D. 12 



ity of the schools which he or his children are able to attend. It is just 
that kind of opportunity which the information involved here would sup- 
ply. There is, then, a public policy favoring disclosure of the application 
information, and the existence of such a policy suggests that an intent to 
make the material public existed at the time G. L. c. 93, § 21B and G. 
L. c. 75D, § 4 were enacted. Accordingly, in my opinion, the applica- 
tions do fall within the scope of the "received for filing" clause of G. L. 
c. 4, § 7(26) and are therefore "public records." Accordingly, under G. 
L. c. 66, § 10, they must be released to the press upon request, unless 
there is other law to the contrary. 

In the latter respect, the teacher applications for both types of schools 
and the original license applications for Private Trade Schools contain 
no representations as to confidentiality. Certainly one has no right to 
prevent public disclosure of information that he has unconditionally vol- 
unteered. As for the other materials, on which a representation of confi- 
dentiality does appear, you have suggested that Executive Order #75 
mandates that they be withheld from the public. It is true that the Ex- 
ecutive Order provides that "an agency shall withhold information re- 
quested by a citizen ... if the matters requested are . . . commercial or 
financial information obtained from a person on a privileged or confiden- 
tial basis." However, this mandate is prefaced with the proviso, "unless 
otherwise specifically required by any general or special law." Thus, the 
Order clearly cannot be construed as superseding the requirement of G. 
L. c. 66, § 10 that all public records be publicly disclosed. 

Nor do the schools have any common law or statutory right to non- 
disclosure. A close reading of the statement of confidentiality, as it ap- 
pears on the forms, leads me to conclude that it was not intended as a 
promise of the kind which might give rise to a contract by estoppel or 
other common law rights. Rather, it appears to be merely a statement of 
the Department's policy at the time the applications were submitted, to 
which one could not reasonably expect the Department to be bound. 
Even if the statement were a promise, I am of the view that it would not 
be breached by disclosure here. The statement declares that the infor- 
mation contained in the application will be confidential, but shall be dis- 
closed if a court so orders. Since a court order may be obtained 
whenever the law mandates disclosure, the proviso as to such order 
means, in effect, that the applications remain confidential only in so far 
as the law otherwise allows. The statement was not intended to establish 
a right to nondisclosure for the applicants beyond any they already pos- 
sessed. As I have indicated above, G. L. c. 66, § 10 requires disclosure. 
Consequently, any "promise" of confidentiality is, by its own terms, 
suspended, and the applicants have no right to prohibit release of the 
information. 

The above analysis also disposes of any suggestion that disclosure of 
the information in question violates the statutory right to privacy created 
by St. 1973, c. 941. Under the circumstances, the information is simply 
not confidential and therefore not "private." 

Since all of the applications are public records, since G. L. c. 66, § 10 



P.D. 12 105 



requires public disclosure of information contained in all public records, 
and since there is no law to the contrary prohibiting disclosure of the 
information contained in the applications, 1 conclude that you must re- 
lease such information to those who request it.' 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 29 January 24, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Mr. Secretary: 

With regard to the duties of the Registrar of Vital Statistics to record 
births, you have asked for my opinion on the following question: 
"May a birth of a legitimate child born to a married mother 
living with her husband who is the father of the child and who 
has had her name legally changed from her married name to 
her maiden name be recorded under her legal surname rather 
than that of her husband?" 
The short answer to your question, for the reasons that follow, is "yes." 
Under G. L. c. 46, § 1, each town clerk must record the following 
information as to births: 

"In the record of births, date of record, date of birth, place 
of birth, name of child, his sex, names, places of birth and 
residence of his parents, including the maiden name of the 
mother and occupation of the father. In the record of birth of 
an illegitimate child, the name of, and other facts relating to, 
the father shall not be recorded." 
The duty is to record the "name" of the child. See also, G. L. c. 46, § 3. 
The statute, G. L. c. 46, § 1 , does not require that the name of the child 
include the father's surname as the baby's surname. Nor does such a 
requirement exist in any other statute of this Commonwealth. For in- 
stance, while the Commonwealth has required certain conditions be met 
before people marry, G. L. c. 207, there is no requirement that the chil- 
dren born of that marriage bear the father's surname. In short, there is 
no statutory requirement that a baby's surname be identical with its 
father's surname. 

It is, of course, customary in this country for the baby's surname to 
be the patronymic rather than the matronymic. Such a practice is, how- 
ever, only custom and does not have the force of law. See Laflin & 
Rand Co. v. Steytler, 146 Pa. (31 Crumrine) 434, 442 (Pa. 1892); 



M huvc considered the iimendmenls mudc to the puhhe lecoids stiilules h> Si 1973, e. 1(1>() (elTeetivc July I. 1974) in 
reaching my conclusions. Since the amendments considerably liberalize the public records law, a conclusion that the 
information in question constitutes public records open to inspection under the present la« would not change under the 
amendments. 



106 P.D. 12 



Application of Shipley, 205 N.Y.S.2d 581, 586; In re Cohen, 255 N.Y.S. 
616 (Sup. Ct. 1932); Fulgham v. Paul, 229 Ga. 463, 192 S.E.2d 376 
(1972). But cf. Sobel v. Sobel, 46 N.J. Super. 284, 134 A. 2d 598, 600 
(1957). 

Nor is it inconsistent with the law of names for a legitimate child not 
to bear its father's surname. First, it has not always been customary for 
a legitimate baby to share its father's surname. In re Snook, 2 Hilt. 566; 
Application of Shipley, supra. As was said in Smith v. United States 
Casualty Co., 197 N.Y. 420, 423 (1910): 

"In the early life of all races surnames were unknown, 
while given names have been used from the most distant 
times to identify and distinguish a particular individual from 
his fellows. In England surnames were unknown until about 
the tenth century and they did not come into general use or 
become hereditary until many years later. (8 Nelson's Encyc. 
386.) At first they were used, sometimes for an easy method 
of identification and at others from accident, caprice, taste 
and a multitude of other causes. Mr. Bardsley in his History 
of English Surnames gives thousands of instances of change 
through selection, the action of neighbors in applying descrip- 
tive epithets, the use of nicknames and pet names and the 
gradual development through circumstances and the necessity 
of identification as population increased. Thus the son of 
John or Peter became known as John's son or Peter's son and 
finally as Johnson or Peterson, aside from his given name. It 
is well known that the word meaning 'son' in different lan- 
guages, such as Fitz and Mac, was prefixed to the Christian 
name of the father to give the son a surname and 'O' to give 
one to the grandson, and thus we have the names FitzGerald, 
MacDonough, O'Brien and many others. The place of birth 
or residence, the name of an estate, the business pursued, 
physical characteristics, mental or moral qualities and the 
like, were turned into surnames. It is to be noted, however, 
that the surname in its origin was not as rule inherited from 
the father, but either adopted by the son, or bestowed upon 
him by the people of the community where he lived. 
(Dudgeon's Origin of Surnames, 252.) Father and son did not 
always have the same surname and it was not regarded as im- 
portant, for both frequently had more than one. Coke wrote 
in the forepart of the seventeenth century: 'Special heed is to 
be taken of the name of baptism as a man cannot have two, 
though he may have divers surnames.' (Coke Lit. [1st Am. 
ed.] 3, a. m.)." 

Even as custom changed so that it became common for the child to 
share the father's surname, custom may in the future change and other 
patterns of naming became common. 



P.D. 12 10/ 



Second, the practice of giving the baby the father's surname stems, in 
part, from the past practice of both married parents sharing a common 
surname, usually the father's. See 6 Op. Atty. Gen. 207; Application of 
Green, 283 N.Y.S.2d 242 (N.Y.C. Civil Court 1967). There is no legal 
requirement that parents share a common surname, and, in this instance, 
they do not. Correspondingly, there does not appear to be a requirement 
that a baby share its father's surname, hi re Faith's Application, 22 N.J. 
Misc. 412, 39 A. 2d 638, 640 (1944). 

Although it has been customary in this country for a married woman 
to take her husband's surname on marriage, it is unclear whether there 
was any requirement at common law that she do so. It is said that no 
such requirement existed by law in England. 19 Halsbury's Laws of 
England 829 (3d 1957) and C. Ewen, A History of the British Isles, 391 
(London 1931), quoted in Stuart v. Board of Supervisors of Elections, 
226 Md. 440, 295 A. 2d 223 (1972). Jurisdictions in this country have split 
in their views on this question, compare Stuart, supra, and cases listed 
therein, with State ex rel Krupa v. Green, 114 Ohio App. 497, 177 
N.E.2d 616 (1961). The majority view appears to be that there was no 
such common law requirement. The precise question has not been ad- 
judicated in this Commonwealth. Regardless of whether there is a com- 
mon law requirement that a married woman take her husband's sur- 
name, and in my opinion the better view is that there is no such re- 
quirement, Massachusetts has provided a statutory procedure by which 
a married woman may retain her maiden name. G. L. c. 210, § 12. Thus, 
Massachusetts law does not require parents to hold a common surname 
and cannot, consequently, be said to have expressed a strong interest in 
requiring a baby, as a matter of law, to share its father's surname. 

Further, the practice of parents having a common surname may stem 
from that era in the law when a married woman was thought not to exist 
as a legal entity, except under the aegis of her husband. That era is over 
and married women now are recognized to have their own legal identity. 

These changes in law and custom indicate it is not mandatory for a 
baby to have its father's surname. 

Third, Massachusetts law recognizes a common law right to change 
one's name. Such a right is entirely consistent with the rights of these 
parents to name their baby as they have. 

The common law rule regarding name changes was stated in In re 
Snook, supra: 

" but though the custom is widespread and universal for all 
males to bear the names of their parents, there is nothing in 
law prohibiting a man from taking another name if he 
chooses. There is no penalty or punishment for so doing, nor 
any consequence growing out of it, except so far as it may 
lead to or cause a confounding of his identity." 

Massachusetts law recognizes a common law right to change one's 

name. 

In Buyarsky, Petitioner, 322 Mass. 335, 338 (1948), the court stated: 



108 P.D. 12 



"A man, if acting honestly, may assume any name he de- 
sires and by which he wishes to be known in the community 
in which he lives or in the trade circles in which he does his 
business. The law does not require a man to retain and to 
perpetuate the surname of his ancestors. The common law 
recognizes his freedom of choice to assume a name which he 
deems more appropriate and advantageous to him than his 
family name in this present circumstances, if the change is 
not motivated by fraudulent intent. The statute, G. L. (Ter. 
Ed.) c. 210, § 12, does not restrict his choice but aids him to 
secure an official record which definitely and specifically es- 
tablishes his change of name." (Emphasis supplied.) 

See also, Merolevitz, Petitioner, 320 Mass. 448, 450 (1946); Mark v. 

Kahn, 333 Mass. 517, 520-21 (1956). In a case where a petitioner sought 

to invoke the statutory procedure to change his surname, the Supreme 

Judicial Court noted: 

"It is not open to the court to inquire into the motives that 
prompt one to change one's name, provided, of course, they 
are not for dishonest or unlawful ends. Merolevitz, petitioner, 
320 Mass. 448, 449-450. We believe that most persons are en- 
tirely content, indeed proud, to bear the names which they 
acquired at birth. But there may be some who for one reason 
or another do not care to do so. These reasons may be good 
or indifferent, wise or unwise, but it is not the function of the 
courts to pass upon them." Rusconi, Petitioner, 341 Mass. 
167, 170(1960). 

The common law right of free change of name has been held available 
to minors as well as adults, Bruquier v. Bruquier, 12 N.J. Sup. 350, 79 
A. 2d 497 (Ch. 1951); and courts have allowed statutory procedures to 
change the infant's surname from its father's surname. Application of 
Yessner, 304 N.Y.S.2d 901 (N.Y.C. Civil Ct. 1969). See also Mark v. 
Kahn, supra; Margolis v. Margolis, 338 Mass. 416 (1959). However, 
this particular matter does not involve a dispute between the parents 
over the name of the child, a situation arising sometimes out of a di- 
vorce. The principles of law governing such disputes are inapposite 
here. See Margolis v. Margolis, supra; Sobel v. Sobel, supra. 

In summary, the statute requiring the recording of births does not 
contain any requirement that a legitimate baby's surname be its father's 
surname. No other statute of this Commonwealth contains such a re- 
quirement. And while it has been customary for a child to share its 
father's surname, this is a matter of custom only and not of law. See 
Note, 44 Cornell L.Q. 144, 146 (1958). There being no law requiring a 
legitimate baby to be named with its father's surname as its surname, the 
right to name the baby otherwise is a right retained to the parents. The 
birth of a legitimate child born to a married woman living with her hus- 
band and who has had her name legally changed from her married name 



P.D. 12 109 

to her maiden name must be recorded under her legal surname rather 
than that of her husband if the parents so request. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 30 February 7, 1974 

Honorable Robert Q. Crane 

Treasurer and Receiver General 

Chairman, State Board of Retirement 

111 Tremont Street 

Boston, Massachusetts 02108 

Dear Mr. Crane: 

On behalf of the State Board of Retirement, you have requested my 
opinion on the following question: 

"Is the widow of a retired former state employee, who re- 
tired under Section 69 (a) in 1953 and died in 1973, entitled to 
the benefits of Section 101 , as amended, of Chapter 32 of the 
General Laws if said retiree was not married at the time of 
his retirement?" 
General Laws, c. 32, § 69 relates to pensions for the Metropolitan 
Police and provides as follows: 

"The state board of retirement upon the recommendation 
of the metropolitan district commission shall retire any per- 
manent member of its police department, who began continu- 
ous service therein prior to July first, nineteen hundred and 
twenty-one, as follows: 

(a) If such member has become permanently disabled, 
mentally or physically, by injuries sustained through no fault 
of his own in the actual performance of his duty, from further 
performing duty as such member . . ." 
General Laws, c. 32, § 101 provides in relevant part as follows: 
"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 . . . 
under which retirement he was unable to provide for any an- 
nual allowance to be paid to his widow at the time of his 
death, there shall be paid to such widow an annual allowance 
in the amount of sixteen hundred and eighty dollars, subject 
to the provisions of paragraph (e) of section 102 for as long as 
she remains unremarried ..." 
It can be seen that section 101 is silent on the question of whether the 
spouse of the retired former state employee is required to have been 
married to him at the time of his retirement. Where the Legislature has 
intended that the widow be one who was married to the retiree at the 



no P.D. 12 



time of his retirement, it has expressly so provided. See for example, G. 
L. c. 32, § 77A, Option B, which gives a city or town employee who was 
eligible for superannuation retirement the right to elect a pension which 
provides that a portion thereof be "paid to his widow who was his 
spouse at the time of his retirement." Inasmuch as there is no express 
indication in section 101 that the widow be the spouse of the retiree at 
the time of his retirement, I cannot imply such a restriction. Compare 
the opinion of one of my predecessors with respect to St. 1963, c. 526, § 
1, which requires that "the state board of retirement shall pay to the 
surviving widow of such member an annuity amounting to sixteen 
hundred and eighty dollars ..." where it was held that, under the plain 
words of the section, remarriage of a widow who is receiving an annuity 
thereunder does not terminate her right to receive benefits. 1966 Op. 
Atty. Gen. 349. 

Accordingly, the answer to your question is in the affirmative. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 31 February 8, 1974 

Mr. John W. Mclsaac 
Executive Secretary 

Brokers and Salesmen 
Leverett Saltonstall Building 
100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Mr. Mclsaac: 

You have requested my opinion regarding the following question: 
"Are the employees of the Board of Registration of Real Estate Brokers 
& Salesmen prohibited from holding licenses as real estate brokers or 
salesmen?" 

General Laws, c. 13, § 54 provides for the appointment of a Board of 
Registration of Real Estate Brokers and Salesmen "consisting of five 
members . . . three of whom shall have been actively engaged in the real 
estate business as a full time occupation for at least seven years prior to 
their appointment and who shall be licensed real estate brokers, and two 
of whom shall be representatives of the people." The public members 
cannot themselves be licensed real estate brokers. 1964 Op. Atty. Gen. 
115, 116. General Laws, c. 13, § 57 provides in part that "The board 
may, subject to chapter thirty-one, employ a secretary and such other 
clerical and technical assistants as may be necessary to discharge its of- 
ficial duties, shall establish their duties, and, subject to the provisions of 
sections forty-five through fifty, inclusive of chapter thirty shall fix their 
compensation . . ." There is no express provision in section 57 or else- 
where which prohibits the employees of the Board from holding licenses 
as real estate brokers or salesmen. Where the Legislature has intended 



p.D. 12 in 



to impose restrictions on the type of employee of a particular Board it 
has done so. For example, G. L. c. 13, § 36, which creates a Board of 
State Examiners of Plumbers, provides that ''[s]aid board shall appoint 
an executive secretary who . . . has had at least ten years' continuous 
practical experience as a plumber." General Laws, c. 13, § 43, referring 
to the Board of Registration of Haridressers, provides that it "may ap- 
point such agents and employees as the work of the board may require; 
provided, that inspectors or investigators appointed by the board shall 
be registered hairdressers. An inspector or investigator shall not, while 
so employed, own, operate or be employed in a shop or otherwise actu- 
ally do the work of hairdressing for compensation." 

The opinion of my predecessor cited above, to the effect that public 
members cannot themselves be licensed real estate brokers, rests upon a 
necessary implication in the statute that the words "representatives of 
the people" would be meaningless if they could be licensed real estate 
brokers, because the statute specifically provides that only five members 
can be licensed real estate brokers. I find nothing in G. L. c. 13, §§ 
54-57 which would prohibit employees of the Board from holding 
licenses as real estate brokers or salesmen. It is clear from G. L. c. 1 12, 
87§§ and the following related sections that written examinations, rules 
and regulations, and all policy decisions are to be made by the Board 
and that, conversely, the employees of the Board have no discretion and 
that their sole function is to carry out the ministerial duties imposed 
upon them by the Board. Therefore, there would seem to be no abuse of 
their duties merely by reason of their being licensed as aforesaid. If 
there is any such abuse, their licenses may be revoked by the Board 
pursuant to G. L. c. 1 12, § 87AAA and under G. L. c. 1 12. § 61. 

Finally, I find nothing in the conflict of interest statute, G. L. c. 
268A, which is a bar to the employment of such licensed persons except 
of course to the extent that they violate the provisions of the statute in 
the course of their official or personal conduct. The attention of such 
employees should be directed to the statute, particularly the Code of 
Ethics section. See G. L. c. 268A, § 23. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 32 March 12, 1974 

Mr. Adam D. Strachan, Chairman 

Board of Elevator Regulations 

Department of Public Safety 

1010 Commonwealth Avenue 

Boston, Massachusetts 02215 

Dear Chairman Strachan: 

You have requested my opinion whether plans and specifications per- 
taining to the installation or alteration of an elevator must comply with 
amendments to the Rules and Regulations of the Board of Elevator 



112 P.D. 12 



Regulations (Form ELV-2 Revised) which are promulgated subsequent 
to the date of approval but prior to the execution of said plans and 
specifications. With your request, you have submitted a copy of the ap- 
proval form presently employed by the Department of Public Safety. 
That form states that "[tjhese plans are approved subject to the provi- 
sions of the Commonwealth of Massachusetts Elevator and Escalator 
Regulations now in effect." My answer is in the negative. 

An elevator may not be installed or altered in Massachusetts unless 
and until a copy of the plans and specifications for such a project are 
approved by the appropriate inspector. G. L. C. 143, § 62. Generally, 
the approval, as indicated by reference to both the preamble of ELV-2 
and the form of approval, is based upon the rules then in effect. The 
rules and regulations of the Board (and the amendments thereto), 
enacted pursuant to G. L. c. 143, §§ 68-69, become effective when pub- 
lished by the State Secretary pursuant to section 6 of the State Adminis- 
trative Procedure Act (G. L. c. 30A).' A later date may be specified in 
the rules. While ELV-2 does not provide for a late effective date, it ac- 
complishes the same effect by providing: 

''Amendments to these regulations hereafter formulated by 
the Board of Elevator Regulations shall become applicable to 
a new installation, a re-location or a material change for 
which plans and specifications are submitted for approval on 
or after the 180th day following the effective date thereof." 
The rules do not contain any provision which requires either that plans 
conform to subsequent amendments to the rules or that they be com- 
pleted within a certain amount of time. Since the approval under the 
present rules is thus unconditional, the Board does not have the author- 
ity to retroactively vary the terms of such approval. Cf. Commissioner 
of the Department of Community Affairs v. Boston Redevelopment 
Authority, Mass. Adv. Sh. (1972) 1743. 

There would be no legal impediment however to the Board's enacting 
a regulation under its broad statutory authority, G. L. c. 143, §§ 68-69, 
that would require plans not completed within a certain time to be re- 
submitted for approval in accordance with existing regulations. Any par- 
ticularly harsh result which might result from the literal application of 
such a regulation could be alleviated under the remedial provisions per- 
taining to appeals by aggrieved parties. Under G. L. c. 143, § 70, the 
Board may modify or extend the time period involved when an order is 
appealed to the Board. Op. Atty. Gen., Dec. 14, 1964, p. 144. 

In conclusion, it is my opinion that conditioned approvals of plans and 
specifications for the installation or alteration of an elevator may only be 
effectuated if specific rules and regulations providing for such approvals 
are enacted by the Board of Elevator Regulations. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

'Before the enactment of the State Administrative Procedure Act. the rules and regulations become effective upon de- 
posit with the State Secretary. G. L. c. 143. § 69; Op. Any. (.icn.. Jan. 10. 1956. p. 60. 



P.D. 12 113 



Number 33 March 12, 1974 

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 which statutory provision con- 
trols reimbursement to members of the Industrial Accident Board for 
their travel expenses. You state that the members of the Board have had 
a difference of opinion with the Comptroller of the Commonwealth as to 
the interpretation and effect to be given to G. L. c. 30, § 25 (cited in 
your letter as section 35). In connection with your request, the Comp- 
troller has submitted a statement of his views on the question. 

The problem arises because G. L. c. 30, § 25 provides that officers of 
the Commonwealth who are required to travel "shall be allowed their 
actual reasonable expenses incurred in the performance of such duties, 
if such expenses are authorized by law to be paid by the common- 
wealth." (Emphasis supplied.) The Comptroller contends, and the 
members of the Board dispute, that travel expenses are governed by the 
rules promulgated by the Director of Personnel and Standardization 
pursuant to the mandate of G. L. c. 7, § 28. That section requires the 
Director to promulgate rules which "shall regulate . . . travel and meals 
for persons traveling within or without the commonwealth. . . . for of- 
ficers other than those exempted by such rules . . . ." 
Rule G-5 of the Rules provides, in turn, that: 

"Unless otherwise specified, these rules shall apply to all 
persons employed in the executive branch of the state gov- 
ernment . . . with the exception of . . . Members of Boards, 
Commissions or Committees, established by statute . . ." 
The appropriations act for the Fiscal Year 1974 applies the rules of 
the Director, as follows. St. 1973, c. 466, § 5 provides: 

"No monies appropriated under this act shall be expended 
for reimbursement for the expenses of meals for persons 
traveling within or without the commonwealth at the expense 
thereof unless such reimbursement is in accordance with 
rules and rates established in accordance with section 
twenty-eight of chapter seven of the General Laws." 
The third paragraph of section 6 of the same act provides: 

"The allowance to state employees for expenses incurred 
by them in the operation of motor vehicles owned by them 
and used in the performance of their official duties shall not 
exceed ten cents a mile." 
It is clear that the rules and regulations of the Director of Personnel 
and Standardization, by themselves, do not apply to members of the In- 



114 P.D. 12 



dustrial Accident Board. Rule G-5 has the effect of exempting members 
of the Board from the operation of the rules. Such an exemption led one 
of my predecessors to conclude that the rules were inapplicable to mem- 
bers of the Youth Board. 1966 Op. Any. Gen. 98 (August 23, 1965). 
However, the 1974 appropriations act makes clear that the rules for ex- 
penses for meals apply to members of the Board, for section 5 prohibits 
reimbursement unless in accordance with the rules. The prohibition 
must be read as a limitation on the more general provision in G. L. c. 
30, § 25 which permits reimbursement for "actual reasonable ex- 
penses." I also note that section 25 permits reimbursement only "if such 
expenses are authorized by law to be paid by the commonwealth." The 
inclusion of such language clearly indicates an intent on the part of the 
Legislature that the payment of such expenses be subject to appropri- 
ation. 

However, a closer question is presented with respect to payment of 
travel expenses. Section 6 of the appropriations act for Fiscal Year 1974 
applies the ten cents a mile figure to "state employees." While "em- 
ployees" may not be strictly construed to include "officers of the com- 
monwealth," the Legislature may have intended in enacting the 1974 
appropriations act to have included all persons in the employ of the 
Commonwealth within the term "state employees" as that term is used 
in section 6 of the Act. However, for the reasons stated hereinafter, I 
find it unnecessary to resolve that precise question. 

As noted above, G. L. c. 30, § 25 permits reimbursement for "actual 
reasonable expenses." Such expenses are required to "be itemized . . . 
before their allowance by the comptroller." The term "reasonable" is 
nowhere defined in the statute, but it is my opinion that the term may be 
given content by the Comptroller who must allow the claims for reim- 
bursement. Inasmuch as the Legislature has placed a limitation of ten 
cents a mile for travel expenses of state employees, however such a 
group of persons may be defined, it is my view that the Comptroller may 
adopt such a limitation as the upper limit of what is "reasonable" in the 
light of G. L. c. 30, §25. 

Accordingly, it is my opinion that the rules and regulations of the Di- 
rector of Personnel and Standardization may be applied to claims for 
reimbursement of expenses submitted by members of the Industrial Ac- 
cident Board pursuant to G. L. c. 30, § 25. 

Very truly yours, 
ROBERT H. QUINN 
Number 34 Attorney General 

Honorable Francis A. Murdy, O.D., Secretary 

Board of Registration in Optometry .. , .^ \qia 

Leverett Saltonstall Building " March U, iy/4 

100 Cambridge Street 
Boston, Massachusetts 02202 

Dear Sir: 

1 am in receipt of your request for my opinion on the following ques- 



P.D. 12 115 



tion: 

"In the event that a registered optometrist is retained to 
continue the practice of a deceased registered optometrist at 
the request of the widow or widower of such deceased op- 
tometrist, is the retained registered optometrist subject to all 
the provisions of Sections 66 through 73 B, inclusive, of the 
General Laws, Chapter 112, and the rules and regulations 
promulgated thereunder, with respect to the continuation of 
the practice of such deceased optometrist as well as any other 
optometric practice in which he may be engaged?" 

You have further informed me that a specific optometrist who main- 
tains a principal optometry office and who also maintains a branch office 
at his personal residence, has been engaged by the widow of a deceased 
optometrist to conduct her late husband's practice on a part-time basis. 
Although you concede that a widow or widower of a deceased optome- 
trist can continue the practice of optometry by employing a registered 
optometrist pursuant to G. L. c. 112, § 73, you have sought my opinion 
as to whether a registered optometrist conducting an optometry practice 
on behalf of the widow or widower of a deceased optometrist is specifi- 
cally limited by Rule 3 of the Rules and Regulations Governing the 
Practice of Optometry, ule 3, as promulgated by the Board of Registra- 
tion in Optometry, reads as follows: 

"3. An optometrist shall not establish an office other than 
his principal office, except that under written approval from 
the Board, an optometrist may establish a branch office in his 
personal residence. In the event that an optometrist ceases to 
personally reside on premises for which the Board has ap- 
proved the establishment of a branch office, such branch of- 
fice must be terminated forthwith." 

The Board of Registration in Optometry was established by G. L. c. 
13. § 16. The powers and duties of the Board are delineated in G. L. c. 
112, § 66-73B. The Board has the authority to "make rules and regula- 
tions governing its procedure, governing registration and applications 
therefor, and governing the practice of optometry." G. L. c. 112, § 67. 
However, the rules and regulations promulgated by the Board, must be 
consistent with G. L. c. 1 12, §§ 66-73B. See Silverman v. Board of Re- 
gistration in Optometry, 344 Mass. 129, 131. 

In the instant situation. Rule 3 prohibits an optometrist from 
establishing more than one branch office. A registered optometrist who, 
in addition to conducting his own practice, assists a widow or widower 
in conducting the practice of the deceased spouse has not, in fact, 
established a branch office. The verb, "to establish," has been defined 
as meaning, inter alia, "to bring into being; to build; . . ." BLACK'S 
LAW DICTIONARY 643 (Rev. 4th Ed. 1968). When a registered op- 
tometrist assists a widow or widower in conducting the optometry prac- 
tice of a deceased spouse, the registered optometrist is being employed 
to continue the operation of a practice already in existence. 



116 P.D. 12 



The conclusion that Rule 3 does not apply to the specific situation you 
have described is further compelled by the statutory proviso contained 
in G. L. c. 112, § 73 which states in pertinent part: 

"... nor shall said section [66-72A] prevent the widow or 
widower of a registered optometrist, or the wife or husband 
of a registered optometrist who is incapacitated, from con- 
tinuing the practice of optometry under a registered optomet- 
rist." 
If Rule 3 were interpreted to bring within the purview of the "establish- 
ment of a branch office," the continuation of the practice of a deceased 
optometrist by a registered practicing optometrist on behalf of the 
widow or widower of the deceased optometrist, it would then be clearly 
inconsistent with G. L. c. 1 12, § 73. Such an interpretation might restrict 
a qualifying widow or widower to continuing the practice of the de- 
ceased spouse only when the widow or widower could obtain the assis- 
tance of a previously non-practicing optometrist or of a practicing op- 
tometrist who would be willing to forego his present practice. Such a re- 
sult is inconsistent with the statutory purpose expressed in G. L. c. 112, 
§73. 

Accordingly, it is my opinion that Rule 3 of the Rules and Regulations 
Governing the Practice of Optometry is not applicable to the situation in 
which a practicing optometrist assists in continuing the practice of a de- 
ceased optometrist on behalf of the deceased optometrist's widow or 
widower. Of course. Rule 3 is still applicable to prohibit the optometrist 
in question from establishing any additional branch offices on his own 
and apart from his employment on behalf of a widow or widower of a 
deceased optometrist. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 35 March 12, 1974 

Honorable Bruce Campbell 

Commissioner of Public Works 

100 Nashua Street 

Boston, Massachusetts 02114 

Honorable Charles C. Cabot, Jr. 
Chairman, Outdoor Advertising Board 
80 Boylston Street 
Boston, Massachusetts 021 16 

Gentlemen: 

You have jointly requested my opinion concerning the authority and 
the obHgation of the Department of Public Works to remove billboards 
and signs illegally maintained without a permit in violation of Section 



P.D. 12 117 



4(a) of the Outdoor Advertising Board's rules and regulations. As you 
have stated, outdoor signs which are required to be licensed by the Out- 
door Advertising Board and which are maintained without a permit have 
statutorily been deemed to be public nuisances. G. L. c. 93, § 30A. This 
same statute provides the Board with the authority to abate and remove 
such nuisances as is given a board of health of a town to abate and re- 
move health nuisances pursuant to G. L. c. Ill, §§ 123-125. You have 
requested my opinion as to four specific questions relative to the author- 
ity of the Department of Public Works to remove such nuisances at the 
request of the Outdoor Advertising Board. 

First, you have sought my opinion as to whether G. L. c. 16, § 14 
permits and/or requires the Department of Public Works to cooperate in 
enforcing the Outdoor Advertising Board's rules and regulations only 
along interstate and primary highways, only along state highways or 
everywhere throughout the commonwealth. 

General Laws, c. 93D, §§ 1-7 imposes upon the Department primary 
enforcement responsibility with respect to billboards along all interstate 
and primary highway systems in the Commonwealth. General Laws, c. 
93, §§ 29-33 delineates the powers and responsibilities of the Outdoor 
Advertising Board for the regulation of outdoor advertising. However, 
G. L. c. 10, § 14, which establishes the criteria for the selection of 
Board members, requires that one member of the Board be the Commis- 
sioner of Public Works or his representative, and further requires: 
"It shall be the duty of the commissioner of public works, 
... in addition to his other duties as member of the board, to 
arrange for the co-operation of district engineers and other 
field employees of the department of public works in report- 
ing the location of billboards, signs or other advertising de- 
vices along state highways, and in enforcing the rules and 
regulations of the board/' (Emphasis supplied.) 

The Legislature has imposed two distinct duties upon the Department 
of Public Works: (1) a duty to cooperate in reporting billboard locations 
which extend only to state highways, and (2) a duty to cooperate in en- 
forcing the Board's rules and regulations which is not limited to state 
highways and therefore applies throughout the Commonwealth. Al- 
though the Legislature, subsequent to the enactment of G. L. c. 16, § 
14, transferred the Outdoor Advertising Board out of the Department of 
Public Works and into the Executive Office of Environmental Affairs 
pursuant to St. 1969, c. 704, there is no indication that by this action the 
Legislature further intended to relieve the Commissioner of Public 
Works of his duty to arrange for cooperation of his Department in en- 
forcing the Board's rules and regulations. Accordingly, it is my opinion 
that G. L. c. 16, § 14 continues to impose upon the Commissioner a 
duty to arrange for cooperation in enforcing the Board's rules and regu- 
lations throughout the Commonwealth. 

Secondly, you have requested my opinion as to whether the duty to 
cooperate requires the Department to remove illegally maintained signs 



118 P.D. 12 



upon the request of the Board. An opinion of one of my predecessors to 
which you have referred, 1938 Op. Atty. Gen., p. 125, indicated that the 
Department had the authority to remove illegally maintained signs. Sub- 
sequent to that opinion, the Outdoor Advertising Board was created 
with primary responsibility for the regulation of outdoor advertising. G. 
L. c. 93, §§ 29-33. However, there remains in the Department of Public 
Works by virtue of G. L. c. 16, § 14 an affirmative obligation of cooper- 
ation in enforcing the Board's rules and regulations. It is my opinion that 
G. L. c. 16, § 14 authorizes the Department to remove illegally main- 
tained billboards when requested to do so by the Board and, further, 
that duty imposed by G. L. c. 16, § 14 extends to requiring the Depart- 
ment to comply with a Board request to remove an illegally maintained 
sign within a reasonable time after such request has been received. 

Thirdly, I have been asked to determine whether the Department or 
the Board should hear any expenses incurred in removing illegally main- 
tained signs. As I have noted, G. L. c. 16, § 14 imposes upon the De- 
partment a duty of cooperation in enforcement of the Board's rules. Al- 
though there is no explicit provision in the statute requiring that the De- 
partment bear the expenses of enforcing the Board's rules and regula- 
tions, it is my opinion that such a requirement is implicit in the statutory 
scheme. In this respect, I note further that G. L. c. Ill, § 125 provides 
that expenses incurred in removing a public nuisance are recoverable 
from the owner or occupant in an action of contract. 

Finally, you have requested my opinion as to whether Commonwealth 
personnel, after giving due notice, must obtain a court order before en- 
tering upon private property to remove illegally maintained signs and 
billboards statutorily deemed nuisances. G. L. c. 93, § 30A; G. L. c. 
93D, § 4. The authority to summarily abate public nuisance has its 
origins in early common law and is subsumed within the limits of the 
police power of the states derived from the Tenth Amendment of the 
Constitution of the United States. Lawton v. Steele, 152 U.S. 133, 136 
(1893). In this Commonwealth, the power to summarily abate nuisances 
has long been recognized. Salem v. Eastern R.R. Co., 98 Mass. 431 
(1868). However a recent Supreme Court decision, Fuentes v. Slievin. 
407 U.S. 67 (1972), suggests that the power of a state to act summarily is 
severely limited by due process considerations of a right to notice and a 
hearing prior to any taking of property. The Court in Fuentes reviewed 
its three-step test which must be satisfied to justify summary action 
without a hearing. Any seizure has to be directly necessary to secure an 
important governmental or general public interest; secondly, there has to 
be a special need for very prompt action; and thirdly, the person initiat- 
ing the action must be a government official who, acting under the stan- 
dards of a narrowly drawn statute, determines that the action is neces- 
sary and justified. 407 U.S. 67, 91. Subsequent to Fuentes, summary ac- 
tion to abate a nuisance of emergency proportions has been upheld by at 
least one state court. Apartment House Coun. v. Mayor & C. of 
Ridgefield, 301 A. 2d 484 (New Jersey 1973). 



P.D. 12 119 



It is my opinion that summary action in removing illegally maintained 
signs meets the tests articulated in Fuentes, particularly in light of grow- 
ing concern for the protection of the environment. Also, I find that the 
Board's rules and regulations provide an opportunity for a hearing to ob- 
tain a billboard permit sufficient to satisfy the due process right to notice 
and a hearing. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 36 March 15, 1974 

Mr. Patrick E. McCarthy, Chancellor 

Board of Higher Education 

182 Tremont Street 

Boston, Massachusetts 021 1 1 

Dear Chancellor McCarthy: 

You have requested my opinion whether the Massachusetts General 
Hospital (hereinafter referred to as "MGH"), which was incorporated 
by act of the Legislature, St. 1811 (Jan. Sess.), c. 94, is eligible to seek 
from the Board of Higher Education authority to grant academic de- 
grees. As you note in your letter, the Board has the responsibility to in- 
vestigate and make a determination concerning the incorporation of any 
college or educational institution seeking the power to award degrees. 
G. L. c. 69, § 30. You advise me that since its opening in 1813, MGH 
has carried on the traditional functions of a teaching hospital, i.e., pa- 
tient care, research, and the teaching of physicians and other medical 
personnel. I am further advised that the by-laws of MGH have always 
included as one of its purposes the following: 

"To carry on any educational activities related to the care 
of the sick and injured; or to the promotion of health and the 
prevention of disease, that in the opinion of the Board of 
Trustees may be justified by the facilities, personnel, funds, 
and other requirements that are, or can be, made available." 
Your question asks specifically "whether by act of the [LJegislature and 
the precedent of teaching activity that Massachusetts General Hospital 
could for purposes of [G. L. c. 69, § 30] be considered an educational 
hospital." For the reasons stated below, I decline to answer your ques- 
tion in the specific form in which it is phrased; I do, however, conclude 
that upon the fulfillment of certain conditions MGH would be eligible 
for approval of degree-granting authority. 

General Laws, c. 69, § 30, provides, in part, as follows: 

"The state secretary, before approving a certificate or or- 
ganization in connection with the proposed incorporation of a 
college, junior college, university or other educational institu- 
tion with power to grant degrees, or articles of amendment to 



120 P.D. 12 



the charter of an existing educational institution which will 
give it such power, or changing its name to a name which will 
include the term 'college', 'junior college' or 'university', 
shall refer such certificate or articles to the board of higher 
education. Said board shall immediately make an investiga- 
tion . . . and subject to the provisions of section 31, shall 
make a determination . . ., and shall forthwith report its find- 
ings to the state secretary ... If it appears . . . that said 
board does not approve of such certificate or articles, he shall 
refuse to endorse his approval thereon, otherwise he shall en- 
dorse his approval thereon unless he finds that the provisions 
of law relative to the organization of the corporation or the 
amendment to its charter have not been complied with ..." 
(Emphasis supplied.) 

Section 3 1 of Chapter 69 refers to junior colleges and provides in part 
that the Board of Higher Education shall not approve a certificate of in- 
corporation or articles of amendment in connection with the proposed 
incorporation of a junior college with power to grant degrees or an 
amendment of the charter of any existing educational institution which 
will give it the power to grant junior college degrees, etc., unless — 
"Second, the institution is organized under the laws of the 
commonwealth as a non-profit educational institution, and 
shall have operated as such an institution for . . . not less 
than one year immediately prior to the filing of the petition 
for such privilege ..." 

As I have previously pointed out to your predecessor, 1970-1971 Op. 
Atty. Gen. No. 32, the specific requirement in G. L. c. 69, § 31, Sec- 
ond, that a junior college be organized "as a non-profit educational in- 
stitution" and the absence of any such express requirement in § 30 for a 
college, university or other educational institution lead to the conclusion 
that the latter types of institutions need not be non-profit organizations. 
Section 30 also lacks the requirement that the institution have operated 
as an educational institution for one year. Accordingly, any corporation 
whose articles of organization provide that its purposes include that of 
operating an educational institution comes within section 30 and an 
amendment to its charter giving it the power to grant degrees (other than 
junior college degrees) may be approved. 

It is not clear that the purposes of MGH set out in the act of incorpo- 
ration would qualify it as an "existing educational institution" under c. 
69, § 30. As noted previously, the by-laws apparently have always in- 
cluded education as a corporate purpose. And it appears that in their 
petition to the Legislature the incorporators stressed the educational ad- 
vantages that experience in a hospital would offer to medical students. 
Yet the charter granted by the Legislature stated the corporation's pur- 
pose simply as "the erection, support and maintenance of a General 
Hospital, for sick and insane persons." St. 1811 (Jan. Sess.), c. 94, § 2. 
However, as I noted in my previous opinion referred to above, MGH 



P.D. 12 121 



could simply amend its articles of organization* to include as a corporate 
purpose the operation of the institution for specified educational pur- 
poses, and in addition amend the articles to provide degree-granting 
power. 1970-1971 Op. Atty. Gen. No. 32, supra. The Board would 
thereupon have authority to review the proposed granting of degrees. 

My opinion is not affected by G. L. c. 180, § 13, which provides, in 
part: 

"A corporation organized under this chapter for medical 
purposes shall not confer degrees, or issue diplomas or cer- 
tificates conferring or purporting to confer degrees, unless 
specially authorized thereto by the general court." 
The foregoing section has not been amended since the Leigslature in 
1943 delegated to the Board of Collegiate Authority (predecessor to the 
Board of Higher Education) the responsibility, previously exercised by 
the Legislature itself, for reviewing and approving petitions of institu- 
tions which intend to grant degrees. St. 1943, c. 549, repealing G. L. c. 
3, §§ 6 and 6A, and inserting G. L. c. 69, § 30. Since by repealing G. L. 
c. 3, §§ 6 and 6A, the Legislature left open no procedure for presenting 
to it petitions for degree authority, it is my opinion that the Legislature 
intended to delegate to the Board all of such responsibility, including 
that of reviewing petitions by medical corporations for degree authority. 
In conclusion, then, it is my opinion that if MGH amends its articles 
of organization to include as a corporate purpose the operation of an 
educational institution, and further amends its articles to provide for 
degree-granting authority, the latter amendment should, upon reference 
to the Board by the State Secretary, be reviewed pursuant to G. L. c. 
69, § 30, and may be approved. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 37 April 8, 1974 

Honorable William L Cowin 
Secretary of Administration 
Executive Office for Administration 

and Finance 
State House 
Boston, Massachusetts 02133 

Dear Secretary Cowin: 

You have inquired whether non-professional employees of the Uni- 
versity of Massachusetts whose compensation is paid from grants and 
trust funds received by the University of Massachusetts under the au- 
thority and subject to the provisions of G. L. c. 75, § 1 1, and not from 
any appropriation of the General Court, may be classified and paid by 



■|t appears thai MGH may amend its articles of organization under G. L. c. 180. § 7. notwiihsiandinj; that it was origi- 
nally chartered by the legislature. See G. L. c. 180. § 1; St. 1811 (Jan. Sess.) c. 94. § 1 1. 



122 P.D. 12 

the University without regard to G. L. c. 30. Specifically, you request 
my opinion as to the following questions: 

"1) Are such non-professional positions contemplated by 
General Laws, Chapter 75, Section 11, deemed to be in- 
cluded within the classification plan of the Common- 
wealth as set forth in General Laws, Chapter 30, Section 
45(1)? 
"2) Are such positions as defined above included in the pay 
plan of the Commonwealth as set forth in General Laws, 
Chapter 30, Section 45 (4)?'" 
Section 45 of G. L. c. 30 provides in part as follows: 

"The director of personnel and standardization shall estab- 
lish, administer and keep current and complete an office and 
position classification plan and a pay plan of the common- 
wealth. 

(1) In pursuance of such responsibilities as to the said clas- 
sification plan, the said director shall classify all appointive 
offices and positions in the government of the common- 
wealth, excepting such offices and positions in the profes- 
sional staffs serving under governing boards of institutions of 
higher education . . . (c) for each such class shall establish 
specifications which shall include (i) an appropriate descrip- 
tive title and code number for the class, which shall be the 
official title of all offices and positions in the class and shall 
be set forth on all pay rolls by name or code . . . 



***** 



(4) In pursuance of his said responsibilities as to the said 
pay plan, the director of personnel and standardization shall 
allocate, as provided in paragraph five of this section, each 
such office or position to the appropriate job group in the sal- 
ary schedule set forth in section forty-six, excepting such of- 
fices and positions the pay for which is or shall be otherwise 
fixed by law and those the pay for which is required by law to 
be fixed subject to the approval of the governor and council 

General Laws, c. 75, § 14 grants virtual autonomy to the Trustees of 
the University with respect to the classification, title, salary and condi- 
tions of employment of its professional staff "within funds available by 
appropriation of the general court or from other sources" and subject to 
certain procedures which are spelled out in section 14. The only refer- 
ence in section 14 to "non-professionals" is the definition ("all em- 
ployees who are not classified as professional personnel, such as cleri- 
cal, custodial, security, labor, maintenance and the like"), and the fol- 
lowing provisions: 

"The non-professional personnel of the university shall 
continue as state employees under the provisions of chapter 
thirty and except as otherwise provided in this paragraph, 
shall be employed in authorized permanent positions in ac- 



P.D. 12 123 



cordance with the provisions of section forty-five of said 
chapter; provided, however, that the university shall have the 
authority without prior approval and within the limits of ap- 
propriations to establish and fill temporary, part time and 
seasonal positions within existing titles and rates within avail- 
able appropriations for the fiscal year. A notice of action 
taken in filling all such positions shall be filed with the direc- 
tor of personnel and standardization and with the comptrol- 
ler. 

"All officers and employees, professional and non- 
professional, of the university shall continue to be employees 
of the commonwealth irrespective of the source of funds from 
which their salaries or wages are paid. They shall have the 
same privileges and benefits of other employees of the com- 
monwealth such as retirement benefits, group insurance, in- 
dustrial accident coverage, and other coverage enjoyed by all 
employees of the commonwealth." 
The immediate impression given by a superficial reading of the quoted 
sections of G. L. c. 30 and G. L. c. 75 is that non-professionals must be 
subject to the classification and pay plan procedures set forth in G. L. c. 
30, § 45 because professionals "serving under governing boards of in- 
stitutions of higher education" are expressly excluded from the opera- 
tion of G. L. c. 30, § 45 (1), but non-professionals so employed are not 
expressly excluded, and because G. L. c. 30, § 45 (1) expressly grants to 
the University virtual autonomy as to classification and pay plan proce- 
dures only as to professionals. However, in my view a more careful 
reading of the statutes makes clear that the Legislature intended to grant 
autonomy in these respects as to non-professionals paid from grants and 
trust funds. A situation where a question rose as to the authority of the 
University in the face of an apparently restrictive statute, and which 
seems determinative of the issues raised here, is Opinion of the Justices, 
Mass. Adv. Sh. (1973) 535, where the Justices stated that G. L. c. 8, § 
lOA, which provides in 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 [of buildings] and 
of the governor and council of the commissioner of adminis- 
tration, may lease for the use of such department, commis- 
sion or board, for a term not exceeding five years, premises 
outside of the state house or other building owned by the 
commonwealth, 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." 

did not apply to the University of Massachusetts and that the University 
could obligate the Commonwealth on a lease of tenancy at will of real 
estate without first obtaining the approval of the state officials men- 
tioned in G. L. c. 8, § lOA. The Court based its opinion in part upon the 
legislative history of G. L. c. 75, concluding that the University had au- 



124 P.D. 12 



tonomous authority to enter into the leases and tenancies at will in ques- 
tion notwithstanding the provisions of G. L. c. 8, § lOA. The Court re- 
ferred to section 1 which 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 be subject to, or superseded in 
any such authority by, any other state board, bureau, de- 
partment or commission, except as herein provided." 
The Court also referred to the provision in section 1 1 that "The trustees 
shall have the authority ... to enter into agreements or contracts with 
. . . individuals where such agreements or contracts, in the judgment of 
the trustees, will promote the objectives of the university." I believe, 
therefore, that the answers to your questions concerning non- 
professionals turn on the question of whether there is any provision in 
the applicable statutes which limits the administrative autonomy of the 
University with respect to non-professionals paid out of grants and trust 
funds. 

General Laws, c. 75, § 11, the section which gives the Trustees the 
authority to enter into agreements or contracts with individuals, also 
empowers the Trustees to receive, hold and disburse grants and trust 
funds from sources other than appropriations of the General Court. 
Thus, under section 11 the Trustees have the authority to employ non- 
professionals and to pay them from these sources. It is unnecessary to 
go through the appropriation process for this purpose. Moreover, G. L. 
c. 75, § 14 clearly indicates that the Legislature, in referring to non- 
professionals in the first quoted paragraph above, was thinking only of 
those non-professionals who are paid out of appropriations of the Gen- 
eral Court. Note the reference to the filling of temporary, part time and 
seasonal positions "within available appropriations for the fiscal year." 
That the Legislature had clearly in mind the fact that other sources of 
funds were available out of which professionals and non-professionals 
could be paid is made evident by the next quoted paragraph in section 14 
which states that employees of the University "shall continue to be em- 
ployees of the commonwealth irrespective of the source of funds from 
which their salaries or wages are paid" and as such have the same 
privileges and benefits as other employees of the Commonwealth. If the 
latter sentence had not been inserted, a question naturally would arise as 
to whether employees paid out of grants and trust funds had such 
privileges and benefits. 



P.D. 12 125 



If we examine G. L. c. 30, § 45 in the light of the foregoing analysis, 
we find that it applies only to positions for which funds are or must be 
appropriated by the General Court. See, for example, the following sec- 
tions of G. L. c. 30, § 45 which are set forth below in pertinent part: 
"(5) No permanent allocation or reallocation, in accor- 
dance with this section, of any office or position subject to 
the classification and pay plans provided by this section, shall 
be effected, unless and until 

•k -k "k "k -k 

(c) the written recommendation complying with clauses (a) 
and (h) shall have been filed on or before November fifteenth, 
and from time to time thereafter, by the director of personnel 
and standardization with the budget director and the house 
and senate committees on ways and means, and shall he con- 
sidered as a part of the budget preparation as provided in 
section six of chapter twenty-nine . . ." (Emphasis supplied.) 
Section 46 provides, in pertinent part: 

"(9) No increase in salary shall be effective for any posi- 
tion before the effective date of the appropriation act which 
includes an appropriation made for the purpose of and suffi- 
cient to cover, the cost of such increase." (Emphasis sup- 
plied.) 
Accordingly, G. L. c. 30, § 45 is inapplicable to non-professionals 
hired by the University and paid out of grants and trust funds. 

I have alluded above to the fact that certain professionals are ex- 
pressly excluded from the operation of G. L. c. 30, § 45 (1), thus raising 
the implication that "non-professionals" are thereby made subject to the 
statute. However, inasmuch as the statute is not applicable to non- 
professionals who are not paid from appropriations, the failure of the 
Legislature to state specifically that non-professionals paid from grants 
and trust funds, and not from appropriations, are exempted from G. L. 
c. 30, § 45 is not significant. Opinion of the Justices, Mass. Adv. Sh. 

1973, supra, at pp. 542, 543. 

Your questions, therefore, are both answered in the negative. 

Very truly yours, 
ROBERT H. QUINN 
Attorney General 
Number 38 

Honorable David J. Lucey 

Registrar of Motor Vehicles April 8, 1974 

100 Nashua Street 
Boston, Massachusetts 021 14 

Dear Mr. Lucey: 

You have inquired whether your Chief Deputy Registrar, Mr. E. 
Theodore Gunaris. who attained the age of 65 years on February 9, 

1974, falls within the mandatory retirement age of 70 years or 65 years. 



126 P.D. 12 



Your office advises me that your officials are classified in the Registry 
of Motor Vehicles in the following job classification order, immediately 
below the office of Registrar: 

One Chief Deputy Registrar 
One Deputy Registrar of Administration 
Two Deputy Registrars of Enforcement (Grade 23) 
Two Directors of Field Operations (Grade 23) 
Six Assistants to the Registrar 
Three Assistants to the Deputy Registrar 
General Laws, c. 32, § 1 provides that the "maximum age" for the 
Groups described in G. L. c. 32, § 3(2) (g) is age 70 for Group 1 and age 
65 for Group 4. 

General Laws, c. 32, § 3(2) (g) classifies each member of the State 
Retirement System into four Groups, Group 1 and Group 4, the perti- 
nent Groups, being set forth in relevant part as follows: 

"Group 1. — Officials and general employees including clerical, ad- 
ministrative and technical workers, laborers, mechanics and all others 
not otherwise classified." 

"Group 4 — ... officials and employees of the registry of motor veh- 
icles appointed by the registrar under section twenty-nine of chapter 
ninety ..." 

I understand that prior to the present structure of Chief Deputy Re- 
gistrar, Deputy Registrar, etc., enumerated above, there was only one 
Deputy Registrar and an Assistant to the Registrar. This was consistent 
with the authorization to the Registrar to make appointments as that au- 
thority existed in G. L. c. 90, § 29, which then read in relevant part as 
follows: 

"The registrar shall appoint competent persons to act as 
investigators, examiners and safety instructors, may remove 
them for cause, and may define their duties. He may also ap- 
point, and for cause remove, a deputy registrar, an assistant 
to the registrar, hearings officers, supervising inspectors with 
power to hold hearings, supervisors of special services, and 
assistant supervisors of special services, and may delegate to 
such deputy, assistant, hearings officers, supervising inspec- 
tors, supervisors and assistant supervisors the performance of 
any duty imposed upon the registrar relative to the adminis- 
tration or enforcement of laws relating to motor vehicles." 
(Emphasis supplied.) 
St. 1973, c. 702 strikes out the second sentence of § 29 and substitutes 
the following sentence, the underlined words being the only changes in 
the sentence as it previously existed. 

"He may also appoint, and for cause remove, a director of 
field operations, a deputy registrar, an assistant to the regis- 
trar, hearings officers, supervising inspectors with power to 
hold hearings, supervisors of special services, and assistant 
supervisors of special services, and may delegate to such 



P.D. 12 127 



director of field operations, deputy, assistant, hearings offic- 
ers, supervising inspectors, supervisors and assistant super- 
visors the performance of any duty imposed upon the regis- 
trar relative to the administration or enforcement of laws re- 
lating to motor vehicles." (Emphasis supplied.) 
It is to be noted, however, that the Registrar has been given additional 

power to make appointments by G. L. c. 16, § 9, which reads in relevant 

part as follows: 

"There shall be a division of motor vehicles, to be known 
as the registry of motor vehicles. The governor shall appoint 
an officer, to be known as the registrar of motor vehicles, 
who shall be the executive and administrative head of the di- 
vision . . . In addition to the deputy registrar, assistant to the 
registrar, hearings officers, supervising inspectors, inves- 
tigators and examiners authorized to he appointed hy the re- 
gistrar under section twenty-nine of chapter ninety, he may 
appoint such other officers and employees as may he neces- 
sary to carry out the work of the division. In the event of a 
vacancy in the office of registrar, his powers and duties shall 
be exercised and performed hy the deputy registrar until a re- 
gistrar is duly qualified. ..." (Emphasis supplied.) 

The position "Chief Deputy Registrar" does not appear in G. L. c. 
90, § 29, the latter section referring in pertinent part only to appointment 
of a "director of field operations, a deputy registrar, as assistant to the 
registrar" as well as other lower rated positions. However, G. L. c. 16, 
§ 9, as indicated above, authorizes the Registrar to "appoint such other 
officers and employees as may be necessary to carry out the work of the 
division." Superficially, this provision in G. L. c. 16, § 9 might seem to 
authorize the Registrar to appoint a Chief Deputy Registrar. However, 
§ 9 expressly provides that "[i]n the event of a vacancy in the office of 
registrar, his powers and duties shall be exercised and performed by the 
deputy registrar until a registrar is duly qualified." (Emphasis supplied.) 
The only Deputy Registrar referred to in G. L. c. 16, § 9 is the Deputy 
Registrar provided for in G. L. c. 90, § 29. It is clear that the Legislature 
intended that only the person holding the position listed by the Legisla- 
ture immediately below the office of Registrar should have the authority 
to perform the duties of the Registrar in the event of a vacancy in that 
position. It would seem, therefore, that the present "Chief Deputy Reg- 
istrar" is the "deputy registrar" referred to in G. L. c. 90, § 29. This 
rationale is consistent with other legislation relating to disability of state 
officials or vacancies in their offices. Thus, G. L. c. 7, § 4D authorizes 
the Commissioner of Administration and Finance, except as otherwise 
provided by law, to appoint all employees of his office, and § 5 of c. 7 
authorizes the Commissioner, with the consent of the Governor, to ap- 
point a "first deputy commissioner of administration" who "in the ab- 
sence or incapacity of the commissioner or in the event of a vacancy in 
the position of the commissioner . . . shall act as the commissioner until 
the absence or incapacity shall have terminated or the vacancy shall 



128 P.D. 12 



have been filled." Similarly, although § 2 of G. L. c. 9 authorizes the 
State Secretary to "appoint a first deputy, a second deputy, and a third 
deputy and a fourth deputy each of whom shall perform the duties of a 
division head" and § 3 authorizes his deputies to perform their duties 
during the Secretary's disability, § 3 empowers only the First Deputy to 
"perform all statutory duties of the secretary until a secretary is duly 
qualified." Similar language is found in G. L. c. 11, which authorizes 
the appointment of a First Deputy Auditor (§ 2) and a second, third and 
fourth Deputy Auditor (§ 5), but empowers only the First Deputy to 
perform the duties of the State Auditor's office if by reason of sickness, 
absence or other cause the State Auditor is temporarily unable to per- 
form the duties of his office, and in the event of a vacancy in that posi- 
tion, to perform all the statutory duties of the Auditor until an Auditor is 
duly qualified (§ 2). 

In my opinion, therefore, it is clear that the "deputy registrar" refer- 
red to in G. L. c. 90, § 29 and c. 16, § 9 is the chief executive officer 
serving immediately below the Registrar, and that that person is the 
Chief Deputy Registrar. Accordingly, Mr. Gunaris must be classified in 
Group 4 for retirement purposes, and his mandatory retirement age is 
65. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 

Number 39 April 24, 1974 

The Honorable Nicholas L. Metaxas 

Commissioner 

Department of Corporations and Taxation 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 

Dear Commissioner Metaxas: 

You have requested my opinion upon several questions of law arising 
from your intent to appoint as a "Chief of Bureau" in the Department of 
Corporations and Taxation an individual who is presently a member of 
the Legislature. 

You have indicated that the position, one of twelve "Chiefs of 
Bureau", is currently vacant and that it is your duty to fill that vacancy 
by appointment. 

You have also indicated that funds providing salary increases for each 
of the twelve "Chiefs of Bureau" were included in St. 1973, c. 466 sec. 
7, and that such increases were subsequently approved by the Joint 
Committee on Ways and Means. 

You further indicate that you have doubts concerning the propriety of 
such an appointment in light of the provisions of Article LXV of the 
Amendments to the Constitution of the Commonwealth. 



P.D. 12 129 



You have asked the following questions: 

1. Since the position of Chief of Bureau in the Department of 

Corporations and Taxation is not explicitly created by statute, 
is such position an ''office"' as that term is used in Article 
LXV of the Amendments to the Constitution of the Com- 
monwealth? 

2. If the answer to question one is "yes" is it proper, in light of 
the requirements of Article LXV of the Amendments to the 
Constitution of the Commonwealth for me to appoint to the 
position of Chief of Bureau in the Department of Corporations 
and Taxation a legislator serving in the General Court at the 
time of the general appropriation and specific action of the Joint 
Committee on Ways and Means of the Senate and House of 
Representatives referred to above? 

3. If your answer to question two is "no", is it possible, pursuant 
to Stat. 1973, c. 466, S, 7, for the Joint Committee on Ways and 
Means of the Senate and House of Representatives to withdraw 
its approval of the upgrading in salary of a particular Chief of 
Bureau position which is presently vacant? 

4. If your answer to question three is "yes", would it then be 

constitutionally permissible to appoint a present legislator to 
the above-mentioned position at the pre-existing salary not- 
withstanding the general appropriation (Stat. 1973, c. 466, s. 2, 
line item no. 1201-0100) which provides for various salary in- 
creases? 
Article LXV of the Amendments to the Constitution of the Com- 
monwealth, in pertinent part, provides that "[n]o person elected to the 
general court shall during the term for which he was elected be ap- 
pointed to any office created or the emoluments whereof are increased 
during such term ..." 

I have determined that the position of "Chief of Bureau" was created 
prior to the current term of the Legislature. 

From what I have learned of the duties and responsibilities of a 
"Chief of Bureau", it would appear that such person is an officer and 
that the position of such person would be an "office" within the mean- 
ing of Article LXV. To each of the twelve Bureau Chiefs, you have de- 
legated certain duties within your Department. Administrative and ex- 
ecutive power have been conferred upon them. (See Opinion of the 
Justices 302 Mass. 605, 620) 

An examination of our Massachusetts decisions reveals, by all tests, 
such position to be an "office". In Attorney General v. Tillinghast 203 
Mass. 539, the Court delineated the differences between an office and an 
employment. The duties of the officer are not merely clerical or those of 
an agent or servant. They must be performed in the execution of ad- 
ministration of the law. The duties of the officer are public in nature 
"involving in their performance the exercise of some portion of the 
sovereign power whether great or small ..." Also, "a subordinate or 
inferior officer is none the less an officer." (See also Opinion of the 
Justices 341 Mass. 797, 800). 



130 P.D. 12 



Funds necessary for a salary increase for the position in question were 
included in St. 1973 C. 466 sec. 2. The increase was later approved by 
the Joint Committee on Ways and Means. 

It is obvious, therefore, that the vacant position is an office, the 
emoluments whereof have been increased during the term of your in- 
tended appointee. 

My answer to your first question, therefore, is in the affirmative. 

My answer to your second question is in the negative. 

The approval by the joint committee on ways and means of salary 
rates on permanent positions is an on-going process, one which is not 
necessarily confined to a period immediately preceding the annual gen- 
eral appropriation act. It is a process which continues throughout the 
year, even after the enactment of the general appropriation. My under- 
standing of the process is such that, for sufficient cause, the joint com- 
mittee may withdraw its approval of a specific position or positions. 

If, for example, you request that the joint committee withdraw its ap- 
proval of the salary increase for the position in question, it is my opinion 
that the committee may properly withdraw its approval. 

If the joint committee on ways and means withdraws its approval, the 
pre-existing salary would obtain and, therefore, the individual in ques- 
tion would be eligible for appointment. 

Consequently, my answer to your third question is in the affirmative 
and my answer to your fourth question is in the affirmative. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 

Number 40 May 1, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston, Massachusetts 02133 

Dear Mr. Secretary: 

You have requested my opinion whether the Division of Public Rec- 
ords of your office may award the Commission for the Blind with the 
contract for supplying pens with ink-filled cartridges without advertising 
for proposals and without competitive bidding pursuant to G. L. c. 6, § 
134, if all other applicable statutes are complied with. 

In considering your question, the provisions of G. L. c. 66, § 2 are 
applicable as to whether the Supervisor of Public Records should adver- 
tise for proposals as stated in your request. That section provides: 
"The supervisor of records shall advertise for proposals to 
furnish the several departments and offices of the common- 
wealth, and of the counties, cities or towns in which public 
records are kept, with ink of a standard, and upon conditions, 



P.D. 12 131 



established by him, at such periods and in such quantities as 
may be required, and he may make contracts therefor. ..." 
It seems clear that the Division of Public Records must advertise for 
proposals in accordance with the above-mentioned statute. There is no 
applicable statute or regulation in the Massachusetts General Laws that 
requires that there be competitive bidding for the supplying of pens with 
ink-tilled cartridges. 

Very truly yours, 

ROBERT H. QUiNN 

Attorney General 



Number 41 May 3, 1974 

Honorable Arnold R. Rosenfeld 

Executive Director 

Committee on Criminal Justice 

80 Boylston Street 

Boston, Massachusetts 021 16 

Dear Mr. Rosenfeld: 

Your Committee, acting through its Legal Counsel, has requested my 
opinion whether employees of the Committee on Criminal Justice are 
state employees under G. L. c. 152, § 69, thereby entitling them to 
utilize the Commonwealth as the insurer for workmen's compensation. 
The Committee on Criminal Justice was created by St. 1973, c. 1021, 
which, among other things, amended G. L. c. 6 by striking out § 156 and 
inserting new §§ 156, 156A and 156B. The Committee is, in effect, a 
continuation of the former Committee on Law Enforcement and Ad- 
ministration of Criminal Justice which was created by the original § 156 
of G. L. c. 6. Section 156B, as appearing in Chapter 1021, provides in 
the last two sentences thereof as follows: 

"The executive director shall, with the approval of the 
governor, establish such staff positions and employ such ad- 
ministrative, research, technical, legal, clerical, and other 
personnel and consultants as may be necessary to perform 
the duties of the committee. Such personnel shall receive 
such compensation as the executive director, with the ap- 
proval of the governor, shall from time to time fix, and shall 
not be subject to the provisions of chapter thirty-one or of 
section nine A of chapter thirty." 
The last paragraph of § 156, as appearing in Chapter 1021, provides in 
part as follows: 

"The committee may . . . accept gifts, grants, contribu- 
tions, and bequests of funds from any department, agency or 
subdivision of federal, county, or municipal government and 
any individual, foundation, corporation, association, or public 
authority for the purpose of providing or receiving services, 



132 P.D. 12 



facilities, or staff assistance in connection with its work. Such 
funds shall be deposited with the state treasurer and may be 
expended by the committee in accordance with the conditions 
of the gift, grant, contribution, or bequest, without specific 
appropriation. The committee may expend for services and 
other expenses any amounts that the general court may ap- 
propriate therefor." 
You have advised me that the Committee has an executive director 
who is a full time employee and that the Committee's staff is composed 
of full and part time employees and that it also utilizes temporary help 
under contract to a third party, as well as consultants. 

The Workmen's Compensation Act, G. L. c. 152, defines an em- 
ployee as "every person in the service of another under any contract of 
hire, express or implied, oral or written" (§ 1(4) ). The Workmen's 
Compensation Act is made applicable to the Commonwealth by §§ 69 
and 74. 

The pertinent provisions of § 69 are: 

"The commonwealth . . . shall pay to laborers, workmen 
and mechanics employed by it who receive injuries arising 
out of and in the course of their employment, or, in the case 
of death resulting from such injury, to the persons entitled . 
thereto, the compensation provided by this chapter . . . Sec- 
tions seventy to seventy-five, inclusive, shall apply to the 
commonwealth . . . The terms laborers, workmen and 
mechanics, as used in sections sixty-eight to seventy-five, in- 
clusive, shall include . . . other employees . . . regardless of 
the nature of their work, of the commonwealth ... to such 
extent as the commonwealth . . . acting . . . through the gov- 
ernor and council . . . shall determine, as evidenced by a 
writing filed with the department ..." [Now the Division of 
Industrial Accidents]. 
Section 74 provides in part as follows: 

"Sections sixty-nine to seventy-five, inclusive, shall apply 
to all laborers, workmen and mechanics in the service of the 
commonwealth . . . under any employment or contract of 
hire, express or implied, oral or written, including those em- 
ployed in work done in performance of governmental duties 

You have advised that the Governor and Council voted on March 10, 
1937, "to so extend the terms 'laborers, workmen and mechanics' as to 
include all employees, regardless of the nature of their work or duties, 
but not to include employees of the police or fire force." You have also 
advised that evidence of the action of the Governor and Council was 
submitted in writing to the Department of Industrial Accidents on 
March 11, 1937. 

In your accompanying brief you further informed me that: 

"Committee employees are currently classified as 02 em- 
ployees within the Department of Administration and 



P.D. 12 133 



Finance's classification scheme for state employees. Commit- 
tee employees' compensation is a mix of federal and state 
funds drawn from one account administered by the Depart- 
ment of Administration and Finance. The Committee has de- 
signated all state matching funds to the federal grant from the 
Law Enforcement Assistance Administration for use solely in 
compensating Committee employees. On a monthly basis 
compensation might be made completely from federal funds, 
completely from state funds, or a combination of the two; 
however, on a yearly basis, compensation is sixty percent 
federal funds and forty percent state funds. Consultants hired 
by the Committee are hired solely with federal funds. 

"Committee employees are governed by the same rules 
which cover state employees who are covered by workmen's 
compensation. Full-time employees are classified as 02 em- 
ployees by the Department of Administration and Finance. 
Each full-time employee works the standard thirty-seven and 
one half hour work week. Vacation leave is accumulated at 
the rate of one working day per month, up to ten days per 
year, until after five years when leave accumulates at the rate 
of one and one quarter days per month. Sick leave is accumu- 
lated at the rate of one and one quarter working days per 
month. Employees receive yearly raises based on the step in- 
creases established in M.G.L. c. 30, sec. 46. Employees must 
comply with state agency travel regulations. Full-time Com- 
mittee employees have no expected termination date. They 
are expected to work at the Committee so long as they con- 
tinue to perform their duties in conformance with the stand- 
ards of their positions. 

"Committee employees, although partially compensated 
with federal funds, are not eligible for inclusion in the retire- 
ment system for United States Civil Service employees. 
However, they are required to participate in the 
Commonwealth's contributory retirement system for state 
employees as 02 employees. Committee employees are also 
eligible for participation in the Group Health Insurance pro- 
gram for state employees and are eligible for participation in 
the credit union. 

"Part-time employees usually are paid on an hourly basis 
and receive no other benefits. Temporary help and consul- 
tants generally are compensated pursuant to contracted pro- 
visions and are ineligible to receive regular state employee 
benefits." 

I believe that the source of funds for payment of the Committee's em- 
ployees is immaterial. The statute gives the Committee the power to ac- 
cept federal funds (subject to depositing them in the State Treasury) and 
empowers the executive director with the approval of the Governor to 
employ the specified personnel and consultants and to fix their compen- 
sation. The fact that the Department of Administration and Finance has 



134 P.D. 12 



classified them as employees and that they are eligible for the group 
health insurance program for state employees would support the conclu- 
sion that they in fact are employees of the Commonwealth. Accordingly, 
they would be entitled to workmen's compensation and can look to the 
Commonwealth as an insurer. My conclusion does not. of course, apply 
to temporary help who are employed under contracts with third persons, 
or to consultants, who are independent contractors. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



Number 42 May 28, 1974 

Honorable John F. X. Davoren 

Secretary of the Commonwealth 

State House 

Boston Massachusetts 02133 

Dear Mr. Secretary: 

I hereby certify that the attached "Amendment to An Initiative Peti- 
tion" signed by seven persons being registered voters of the Common- 
wealth was filed with me on May 17, 1974. I further certify that the 
"Amendment" pertains to an Initiative Petition filed with me not later 
than the first Wednesday of August, 1973, entitled "AN ACT CREAT- 
ING A CORRUPT PRACTICES COMMISSION AND 
STRENGTHENING THE LAWS RELATING TO CAMPAIGN 
EXPENDITURES AND CONTRIBUTIONS" which petition was 
filed with you on or about the first Wednesday of September, 1973 and 
was completed under the provisions of Article 48 of the Articles of 
Amendment to the Constitution of the Commonwealth and transmitted 
by you to the Clerk of the House of Representatives under the provi- 
sions of Amend. Art. 48, Init., Pt. 2, § 4. It appears that the General 
Court has failed to pass the proposed law within the period of time 
specified in Amend. Art. 48, Init., Pt. 5, § 2. 

The "Amendment" is signed by a majority of the registered voters 
(being ten in number) who first signed the original Initiative Petition. In 
my opinion, the amendment made by such proposers is perfecting in its 
nature and does not materially change the substance of the measure, the 
amendment having been made necessary by intervening legislation 
enacted by the General Court and approved by His Excellency, the 
Governor, namely, St. 1973, c. 1173. 

In my opinion, the summary previously furnished to you with respect 
to the original Initiative Petition requires no change. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 135 



Number 43 May 28, 1974 

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

Dear Commissioner Kehoe: 

With respect to your duties as executive and administrative head of 
the Department of Public Safety, you have requested my opinion 
whether a certain rule enacted pursuant to G. L. c. 147, § 1 applies to 
members of the Uniformed Branch of the Massachusetts State Police. 
Revised Rule 8.3 states that no inspector or officer may take outside 
employment unless he provides the Commissioner of Public Safety with 
an opinion of the Attorney General stating that such outside em- 
ployment would not contravene the provisions of G. L. c. 268A regulat- 
ing the conduct of public employees. My answer is in the negative. 

The Department of Public Safety presently consists of the division of 
state police, the division of inspections and the division of fire preven- 
tion. G. L. c. 22, § 3. The division of state police is divided into the 
detective branch and the uniformed branch. 

Appointments to the detective branch are made pursuant to G. L. c. 
22, § 6 and those to the uniformed branch pursuant to G. L. c. 22, § 9A. 
While § 9A refers on its face to the division of state police and not 
merely to the uniformed branch, the administrative practice of maintain- 
ing distinct branches has been ratified by the Legislature. Various provi- 
sions enacted subsequent to § 9A have explicitly referred to either uni- 
formed members appointed pursuant to § 9A or detectives appointed 
pursuant to § 6, or both. G. L. c. 22, § 9D (additional hours of duty for 
uniformed members); G. L. c. 22, § 91 (additional hours of duty for de- 
tectives); G. L. c. 32, § 26 (retirement of state police officers); G. L. c. 
262, § 53B (witness fees of state police officers); G. L. c. 262, § 53C 
(compensatory time off to police officers.) 

The officers and inspectors appointed pursuant to G. L. c. 22, § 6 are 
governed by the departmental rules enacted pursuant to G. L. c. 147, § 
1. The preamble to those rules explicitly provides that "[tjhese rules and 
regulations shall not be deemed to apply to an officer of the division of 
state police (uniformed branch)." The members of the uniformed branch 
are governed by separate and distinct rules and regulations enacted pur- 
suant to G. L. c. 22, § 9A. Therefore, any conditions pertaining to the 
outside employment of uniformed members must be made part of those 
rules. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



136 P.D. 12 



Number 44 May 28, 1974 

Honorable Freyda P. Koplow 

Commissioner of Banks 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston, Massachusetts 02202 

Dear Commissioner Koplow: 

You have requested my opinion with respect to the legality of a plan 
whereby a certain savings bank intends to make available to its custom- 
ers an extension of credit by means of a revolving credit account against 
which the customer may draw negotiable checks. You state that these 
checks are essentially identical with the instruments used by savings 
banks in connection with savings deposit accounts subject to withdrawal 
(i.e., a "N.O.W. account", so-called), as described in Consumer Sav- 
ings Bank v. Commissioner of Banks, Mass. Adv. Sh. (1972) 929, and 
may be negotiated and used for any purpose for which ordinary checks 
are used. Instead of being charged against a savings deposit account, 
however, the proposed type of check is debited against a revolving cred- 
it account, and the customer would receive periodic statements of the 
kind commonly used under credit card plans. 

You state that the revolving credit account will also be used in con- 
junction with an ordinary "N.O.W. account," so that if a depositor 
draws an overdraft against his "N.O.W. account," the bank will au- 
tomatically make a "book-entry deposit" to the "N.O.W. account," 
sufficient at least to cover the overdraft, and charge the amount of the 
"book-entry deposit" to the depositor's revolving credit account. 

You state that you question the legality of these plans, and ask the 
following questions: 

(1) "May a Massachusetts savings bank allow a borrower to draw 

fully negotiable checks against a revolving credit account?" 

(2) "May a Massachusetts savings bank, upon presentment to it of 

a check drawn against a negotiable withdrawal order account 
which at the time of presentment contains insufficient funds to 
pay the check, credit the depositor's account by an amount 
equal to or greater than the amount of the deficiency, honor 
the check, and debit a revolving credit account maintained by 
the depositor for the amount of the advance to the deposit ac- 
count?" 

Your Deputy Commissioner and General Counsel has submitted to 
me his views on these questions, as have counsel for the Savings Bank 
Association of Massachusetts and for the Home Savings Bank. For the 
reasons set forth below, I answer both questions in the affirmative. 

The plan you have outlined, in each of the variations described in 
your questions, is, as you have suggested, similar in some respects to 
the situation involved in the Consumers Savings Bank case, supra. In 
that case the question was whether a savings bank subject to G. L. c. 



P.D. 12 137 



168 had authority to allow a depositor to withdraw funds from his sav- 
ings account by means of an order of withdrawal in negotiable form, 
without a passbook and without the necessity of the depositor or his rep- 
resentative appearing at the bank. The negotiable withdrawal order, like 
the familiar form of a check, was an unconditional order to the bank 
signed by the drawer-depositor to pay a specified sum to order and on 
demand. The Supreme Judicial Court held that since there was no ex- 
press statutory prohibition of such a plan, there was " no reason in law 
why the bank should be prohibited from putting its plan into effect ..." 
Mass. Adv. Sh. (1972) at 930. Since a savings depositor could in any 
event take his withdrawal in the form of a cashier's check or money 
order, allowing him to withdraw the funds by means of a negotiable 
withdrawal order was "a distinction without a difference." Id. at 931. 

The plan being currently proposed is even closer to that considered in 
an unreported decision of the Superior Court for Suffolk County in 
Golden Credit Corp. v. Koplow, Commissioner, Suffolk Superior Ct. 
No. 94420 Equity (Findings, Rulings & Order for Decree, Aug., 3, 1972). 
In that case a savings bank offered to its customers a line of credit in the 
form of a revolving credit account. The line of credit was available up to 
a maximum limit established by the bank, and a check guarantee card 
was issued to the depositor. The depositor could thereafter initiate a 
loan by making out a draft to any established merchant, business or firm 
in the United States. The payee of the draft agreed to deposit it for col- 
lection in the bank upon which it was drawn within five business days 
from the date of the draft. The Superior Court held that the savings bank 
had authority to implement its plan under G. L. c. 168, §§ 37 and 37B. 
General Laws, c. 168, § 37, provides in part that savings banks 
"may make a loan or series of loans to one or more respon- 
sible borrowers, evidenced by note, loan agreement, or other 
instrument, with or without security, at such lawful rate of in- 
terest and subject to such other lawful charges as the board of 
investment shall by rules or regulations determine . . ." 
Section 37B provides in part that savings banks 

"may issue credit cards for the purpose of making loans to 
one or more persons. Such loans shall be made by such 
means as the board of investment shall determine, including 
but not limited to means of paying to or for the account of 
any party the amount of any transaction in which goods or 
services were sold or cash advanced to said party in reliance 
on a credit card issued by such [savings bank] . . . 

"Such credit cards, loans, advances, and documents used 
in connection therewith shall be in such form and upon such 
terms and conditions as the board of investment shall deter- 
mine . . ." 

The court in the Golden Credit case stated the issue as being whether 
a savings bank was authorized to disburse loan proceeds to persons 
other than the borrower by means of guaranteed drafts drawn by the 



138 P.D. 12 



customer-debtor. Relying by analogy on the above-quoted language in 
the Consumers Savings Bank case, supra, and authority cited therein, 
the court held that since §§ 37 and 37B of c. 168 do not specify the man- 
ner in which savings banks must disburse the proceeds of loans or 
credit-card transactions to its customers, there was nothing to prevent 
the bank from disbursing them to a designated payee. 

In my opinion the present plan as described in your letter is permis- 
sible under the rationale of the Consumers Savings Bank case and, more 
particularly, the Golden Credit case. With respect to your first question, 
whether a savings bank may allow a bor; jwer to draw fully negotiable 
checks against a revolving credit account, I see no essential difference 
between such a practice and the plan in the Golden Credit case. It is 
true that the court in that case noted that the "checks" concerned there 
were not negotiable by the payee: he was required to present them 
within five days for collection at the specified bank. However, the court 
in the Golden Credit case held in effect that the "check" was merely an 
"other instrument" (see G. L. c. 158, § 37) evidencing the loan. Nothing 
in § 37 prohibits such "other instrument" from being negotiable. In view 
of the court's reliance on the Consumers Savings Bank case, where the 
checks drawn on a savings account were fully negotiable, I do not think 
that the court placed any particular weight on the limited negotiability of 
the checks. Since the payee could upon presentment receive the loan 
proceeds from the collecting bank in the form of a cashier's check or 
money order, the limited negotiability of the instrument creating the loan 
amounts to "a distinction without a difference" under the reasoning of 
the Consumers Savings Bank opinion. 

With respect to your second question, whether an overdraft on a 
depositor's "N.O.W." savings account may be honored by, in effect, 
transferring funds from his revolving credit account to his savings ac- 
count, it is my opinion that this variation of the plan is also permissible 
under present law. The use of negotiable withdrawal orders for savings 
accounts was authorized by the decision in the Consumers Savings 
Bank case, and the creation of a loan by drawing a negotiable instrument 
is, as stated above, consistent with the decision in the Golden Credit 
case. I am aware of nothing in the statutes which prohibits the use of the 
two plans in tandem, assuming that all proper disclosures have been 
made to the depositor as to the liability or interest charges he might 
incur. The crediting of the loan created by the overdraft to the 
depositor's "N.O.W." account is simply another method of disbursing 
the proceeds of the loan, and as the court held in the Golden Credit 
case, neither § 37 nor § 37B specifies any particular manner in which 
such proceeds must be disbursed. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



P.D. 12 139 



Number 45 June 10, 1974 

Mr. John F. Cullen 

Executive Secretary 

State Examiners of Electricians 

Leverett Saltonstall Building 

100 Cambridge Street 

Boston. Massachusetts 02202 

Dear Mr. Cullen: 

You have requested my opinion as to whether the Board of State Ex- 
aminers of Electricians may pay the Board's Public Service Member a 
salary while he is also employed by the Department of Mental Health as 
a Supervisor of Laundry. According to your letter, John P. Chiulli was 
appointed as a member of the Board of State Examiners of Electricians 
in 1972 pursuant to G. L. c. 13, § 32, which provides that "the appoin- 
tive members shall each receive for their services thereunder a salary of 
seven hundred and fifty dollars." (Emphasis supplied.) On April 1, 1974, 
Mr. Chiulli was appointed to a Civil Service position in the Department 
of Mental Health, and it is assumed that this appointment is in the na- 
ture of a full-time salaried position. 

The first statute which applies under the facts provided is G. L. c. 30, 
§ 21 which provides in pertinent part that "a person shall not at the same 
time receive more than one salary from the treasury of the common- 
wealth." The statute operates to prohibit the receipt of two salaries re- 
gardless of how "unrelated the positions in question may be." 1966 Op. 
Atty. Gen. 171. Although some opinions of my predecessors discuss the 
meaning of the word "salary," in the present situation, the phraseology 
of the statute under which Mr. Chiulli was appointed resolves the issue 
as it specifically states that Mr. Chiulli will receive a "salary." 1959 Op. 
Atty. Gen. 95. Therefore, the answer to the question of whether he can 
hold two positions and receive two salaries is in the negative. 

If G. L. c. 30, § 21 did not operate as a bar, G. L. c. 29, § 31 would. 
The latter provides that "[S]alaries payable by the commonwealth . . . 
shall be in full for all services rendered to the commonwealth by the per- 
sons to whom they are paid." Since the statute precludes a person from 
"receiving compensation for any other service rendered during the usual 
hours of employment in the salaried position which he occupies," 1956 
Op. Atty. Gen. 42 (quoting V Op. Atty. Gen. 699, 701), Mr. Chiulli may 
not be paid by the Commonwealth for services rendered at Board meet- 
ings during his hours of employment with the Department of Mental 
Health. 

I note that the statutes to which I have made reference constitute a 
bar to receipt of two salaries and not to holding two unrelated positions 
with the Commonwealth. It is therefore possible for Mr. Chiulli to 
waive receipt of the salary from the Board of State Examiners of Elec- 
tricians but not a portion of the salary received from the Department of 
Mental Health, as long as the fulfillment of his duties with the Depart- 
ment of Mental Health is not affected. 1966 Op. Atty. Gen. 171; 1956 



140 P.D. 12 



Op. Atty. Gen. 42. Finally, my conclusion is limited to the receipt of 
salaries and not such other compensation, e.g., travel expenses, which 
are not encompassed by the definition of salary. 

" 'Salary' is limited to compensation for services established on an an- 
nual or periodical basis and paid usually in installments, at stated inter- 
vals, upon the stipulated annual compensation." 1970 Op. Atty. Gen. 
66. 

Very truly yours, 
ROBERT H. QUINN 

Attorney General 



Number 46 June 10, 1974 

Mr. Herman H. Golding, C.P.A. 

Chairman, Board of Public Accountancy 

Leverett Saltonstall Building 

100 Cambridge Street ^ 

Boston, Massachusetts 02202 

Dear Mr. Golding: 

You have asked my opinion on the constitutionality of the citizenship 
requirement of M.G.L. c. 112, § 87A(a), which provides: 

''(«) The board of public accountancy, hereinafter in this 
section and in sections eighty-seven B to eighty-seven E, in- 
clusive, called the 'board,' shall register as a certified public 
accountant and issue a certificate of 'certified public accoun- 
tant' to any person who (1) is a citizen of the United States, 
(2) is domiciled in the commonwealth, (3) has attained the age 
of eighteen years, (4) is of good moral character, (5) shall 
have successfully passed a written examination given by the 
board in such subjects as the board shall determine to be ap- 
propriate, or shall receive a partial or total waiver of exami- 
nation under regulations made by the board and (6) shall have 
satisfied the board that he meets the requirements respecting 
education and experience set by regulations made by the 
board under this section." (Emphasis supplied.) 
For the reasons which follow, it is my opinion that the citizenship re- 
quirement of M.G.L. c. 1 12, § 87A(a) is unconstitutional and may not be 
enforced. 

The Fourteenth Amendment to the Constitution of the United States 
protects aliens as persons who may not be deprived of the equal protec- 
tion of the laws. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Included 
within this guarantee of equal protection is the right to pursue an occu- 
pation without discrimination based on race of nationality. Truax v. 
Raich, 239 U.S. 33 (1915). It has been held unconsfitutional for a state 
to deny fishing licenses to aliens. Takahashi v. Fish and Game 
Commission, 334 U.S. 410 (1948). 



P.D. 12 141 



In Graham v. Richardson, 403 U.S. 365, at 372 (1971), the Supreme 
Court held that: 

"[C]lassifications based on alienage, like those based on 
nationality or race, are inherently suspect and subject to close 
judicial scrutiny." 
A state which adopts such a suspect classification as alienage bears a 
heavy burden of justification. In two recent cases, the Supreme Court 
found that there were no sufficient state interests to justify excluding 
aliens from admission to the bar. In re AppHcation of Griffiths, 413 U.S. 
717 (1973), or to justify excluding aliens from civil service positions, 
Suiiarman v. Doiigall, 413 U.S. 634 (1973). 

In Griffiths, the Court rejected arguments that the alienage classifica- 
tion was justified by any considerations of the role of attorneys as "of- 
ficers of the Court." The Court noted that the state's substantial interest 
in the qualifications of those admitted to the bar was not served by a 
broad prohibition on aliens as a class. The state was still free to reject 
individual unqualified candidates. 

In Sugarman, the Court held that while it might be permissible for 
states to exclude aliens from high public offices, it is not permissible for 
states to prevent all aliens from holding positions in the classified, com- 
petitive civil service. 

Whatever interests the Commonwealth may have in excluding aliens 
from licensing as public accountants, they do not appear to be. any 
stronger than the interests involved in Griffiths and Dougall. Accord- 
ingly, it is my opinion that the citizenship requirement of G. L. c. 112, § 
87A(a) violates the Equal Protection Clause of the Fourteenth Amend- 
ment to the Constitution of the United States and is invalid. 

Very truly yours, 

ROBERT H. QUINN 

Attorney General 



142 P.D. 12 

INDEX TO OPINIONS 

TOPIC OPINION PAGE 

Abortion 

Hospital discretion in refusing medical services 1 42 

Affirmative Action 

Invalid as statewide condition of school construction 

grants 22 86 

Alcohol 

1) Authority to arrest person driving under influence 3 46 

2) Seasonal licenses dependent on factual determination .. 18 78 

Architects 

Use of temporary designers for preliminary studies 8 61 

Arrest 

1) Authority under G.L. c. 90 §21 to arrest driver having 
expired license or registration or driving under the 

influence 3 46 

2) Protective custody not same as 3 46 

Banks 

Legality of revolving credit accounts against which nego- 
tiable checks can be drawn 44 136 

Billboards 

Removal of illegally maintained signs 35 116 

Blind 

1) Eligibility for purchase contracts by Supervisor of Pub- 
he Records 20 81 

2) Contracts by Supervisor of Public Records must be ad- 
vertised before awarded 40 130 

Boating 

Town of Sharon by-laws 24 91 

Buildings 

Trailers, mobile homes, recreational vehicles as 18 78 

By-law 

Regulation of boat. Town of Sharon 24 91 

Campaign Expenditures 

Certification of an amendment to an initiative petition 42 134 

Children 

1) Domicilary requirements for emancipated minor 4 48 

2) Legitimate child of married parents can have name re- 
corded in either father's surname or mother's maiden 

name 29 105 

Citizenship 

As required for CPA license unconstitutional 46 140 

Civil Service 

1) Removal of right to review examination grading 6 55 

2) Town accountant exempt from 16 73 



P.D. 12 143 

^ .. TOPIC OPINION PAGE 

Compensation 

1) Bar to receipt of simultaneous state salaries 45 139 

2) No prohibition against receiving simultaneous federal 

and state income 15 73 

Contracts 

1) Affirmative action invalid as statewide condition of 

school construction grants 22 86 

2) Contracts by Supervisor of Public Records must be ad- 
vertised before awarded 40 1 30 

3) Eligibility of Commission for the Blind for purchase 

contracts by Supervisor of Public Records 20 81 

CO. R.I. 

Dissemination of information completed by court clerks 

to public 23 89 

Criminal Record 

1) Protective custody does not establish 3 46 

2) Dissemination of information controlled by CO. R.I. .. 23 89 

Detention Homes 

Discretion in transferring child committed on temporary 

basis 13 70 

Education: see schools 

Sterilization 

Hospital discretion in refusing medical services I 42 

Electrical Wiring 

1) Homeowner need not be certified electrician to make 

own repairs 12 69 

2) Inspection of state-owned property by City or Town 

inspector of Wires 27 99 

Electricians 

1) Multiple licensing not permissible 26 98 

2) State Examiner Board Public Service Member can only 

receive one state salary 45 139 

Elevators 

Regulations providing for approval of plans and 

specifications 32 II I 

Executive Order 

Affirmative Action construction contracts not binding on 

local schools 22 86 

Equal Protection 

Citizenship requirement for CPA license unconstitutional 46 140 

Fire Departments 

Cerification of trucks carrying flammable liquids 10 64 

Foster Homes 

Discretion in transferring child committed on temporary 

basis 13 70 

Gas 

1 ) authority to inspect gas fittings at place of manufacture 

of trailers, mobile homes and recreational vehicles 18 78 

2) synthetic natural gas. jurisdiction of DPU 21 82 



144 P.D. 12 



TOPIC OPINION PAGE 

Hospital 

Eligibility of Massachusetts General Hospital to grant 

academic degrees 36 119 

Industry 

Use of public funds to stimulate growth 5 50 

Initiative Petition 

Certification for an amendment 42 1 34 

Inspection 

1) Authority to inspect gas fittings at place of manufacture 

of trailers, mobile homes and recreational vehicles 18 78 

2) State-owned property inspected by City or Town in- 
spector of wires 27 99 

License 

1) Citizenship requirement for CPA license 
unconstitutional 46 1 40 

2) Disclosure of information in teacher applications for 

licenses at private trade and business schools 28 100 

3) Multiple electrician licensing not permissible 25 96 

4) Real estate brokers and salesmen 31 110 

5) Seasonal liquor license factual determination 17 76 

Marriage 

1) Domicilary requirements for emancipated minor 4 48 

2) Legitimate child of married parents can have name re- 
corded in either father's surname or mother's maiden 

name 29 1 05 

Motor Vehicle 

1 ) Retirement age for Chief Deputy Registrar 38 125 

2 ) Right of officer to arrest driver 3 46 

Narcotics 

Authority to arrest person driving under influence 3 46 

Office 

Defined in Art. 65 Amendments to Mass. Constitution ... 39 128 

Optometrist 

Continuation of practice of deceased optometrist 34 114 

Permits 

Authority to require special applications for antlerless 

deer hunting 2 45 

Protective Custody 

Inability to use records in subsequent criminal action or 

civil suit 3 46 

Public Records 

1) Legitimate child of married parents have name re- 
corded in either father's surname or mother's maiden 

name 29 105 

2) Requires public disclosure of information in teacher 
applications for licenses at private trade and business 

schools 28 100 



P.D. 12 145 



TOPIC OPINION PAGE 

Rates 

1) D.P.U. jurisdiction over rates between subsidiary and 

parent 21 82 

2) Remedies for overcharges when failure to file tariffs.... 1 1 66 

Real Estate 

Board employees can hold real estate brokers or salesmen 

licenses 31 110 

Regulations 

1) Approval of plans and specifications for elevators 

requires 32 II I 

2) Massachusetts Hospital School exempt from APA 

requ irements 9 63 

Reimbursement 

Travel expenses regulated by Director of Personnel & 

Standardization 33 113 

Retirement 

1) Benefits for state police widows 30 109 

2) Mandatory retirement age for Chief Deputy Registrar, 

Registry of Motor Vehicles 38 125 

Schools 

1) Department of Education cannot authorize statewide 
affirmative action as condition of school construction 

grants 22 86 

2) Disclosure of information in teacher applications for 

licenses at private trade and business schools 28 100 

3) Eligibility of Massachusetts General Hospital to grant 

academic degrees 36 119 

4) Payment of non-professional employees of University 

of Massachusetts 37 121 



Religion 

Hospital discretion in refusing sterilization and abortion 
services 



42 



Sewage 

Construction, maintenance of disposal systems 25 96 

State Action 

School construction grants as local matter subject to re- 
quirements of General Court 22 86 

State Employees 

Employees of Committee on Criminal Justices considered 41 131 

State Police 

1) Conditions pertaining to outside employment of 

uniformed members 43 135 

2) Retirement benefits for widows 30 109 

Statute of Limitations 

Fradulent concealment tolls 11 66 

Tidal flats 

licensing and filling terms 7 58 



146 



P.D. 12 



TOPIC 
Travel 

Expenses reimbursement regulated by Director of Per- 
sonnel and Standardization 

Trustee 

Power to receive grants and disburse proceeds 

Vacation Pay 

No prohibition against receiving simultaneous federal and 
state compensation 

Veterans Benefits 

1) Application for medical reimbursements 

2) Payment of Vietnam bonuses factual determination 

Workmen's Compensation 

Employees of Committee on Criminal Justices eligible for. 



OPINION 



33 



15 

14 
14 

4! 



PAGE 

113 
63 

73 



131 



INDEX OF REQUESTING AGENCIES 

AGENCY OPINION PAGE 

Administrative and Finance, Executive Office for 37 121 

Alcoholic Beverage Control Commission 18 78 

Banks, Commissioner of 44 136 

Blind, Commission for the 20.40 81,130 

Building Construction, Bureau of 8 61 

Civil Service, Director of 17 76 

Corporations & Taxation, Department of 15.39 73.128 

Criminal History Systems Board 23 89 

Criminal Justice, Committee on 41 131 

Discrimination, Massachusetts Commission Against 22 86 

District Attorney for the Norfolk District 3 46 

Education, Department of 28 100 

Electricians, State Examiners of 12,26.27 69.98,99 

Executive Secretary of Pro Term, Executive Council 14 71 

Fisheries and Game, Division of 2 45 

Gas, Massachusetts Regulatory Board 19 79 

Governor 1 42 

Higher Education, Board of 36 119 

Industrial Accidents Board 33 113 

Marine and Recreational Vehicles, Division of 24 91 

Massachusetts Hospital School 9 63 

Motor Vehicles, Registrar of 38 125 

Optometry, Board of Registration in 34 1 14 

Outdoor Advertising Board 35 1 16 

Public Accounting, Board of 46 140 

Public Health, Department of 25 96 

Public Safety, Department of 10.32.43 64. 11 1.13.' 

Public Utilities. Department of 21.11 82.66 

Public Works, Department of 7.35 58.116 

Real Estate Brokers and Salesmen, Board of Registration 3! 110 

Registration, Director of 6.12.27.31.34|55.69.99.1 10 

Representatives, House of 5 50 

Retirement, State Board of 30 109 

Secretary of the Commonwealth 4.20.29.40.42 148.81 .105.13 



P.D. 12 



147 



OPINION PAGE 

Treasury Department, Vietnam Bonus Division 16 73 

Vital Statistics, State Register of 4.29 48.105 

Youth Services. Department of 13 70 

INDEX OF ATTORNEY GENERAL OPINIONS CITED 

1 Op. Atty. Gen. 186 28 101 

2 Op. Atty. Gen. 311 (1902) 21 83 

6 Op. Atty. Gen. 207 29 107 

8 Op. Atty. Gen. 216 7 59 

1938 Op. Atty. Gen. 125 35 118 

1947 Op. Atty. Gen. 43 11 68 

1956 Op. Atty. Gen. 42 45 139 

1956 Op. Atty. Gen. 60 32 112 

1957-58 Op. Atty. Gen. 65 27 100 

1959 Op. Atty. Gen. 95 45 139 

1960-61 Op. Atty. Gen. 50 27 100 

1964-65 Op. Atty. Gen. 115 31 110 

1964-65 Op. Atty. Gen. 144 32 112 

1965-66 Op. Atty. Gen. 151 8 61 

1966 Op. Atty. Gen. 98 33 114 

1966 Op. Atty. Gen. 171 45 139 

1966-67 Op. Atty. Gen. 221 27 100 

1966-67 Op. Atty. Gen. 349 30 110 

1970-71 Op. Atty. Gen. No. 32 36 120 

1970 Op. Atty. Gen. 66 45 140 

1971-72 Op. Atty. Gen. 3 4 49 

1971-72 Op. Atty. Gen. 36 27 100 

INDEX OF CASES CITED 

Algonquin SNG, Inc. Opinion No. 637, FPC 21 86 

Allydonn Realty Corp. v. Holyoke Housing Authority, 304 

Mass. 288 (1939) '. 5 51 

Apartment House Coun. v. Mayor & C. of Ridgefield, 301 

A. 2d 484 (New Jersey 1973) 35 118 

Application of Green, 283 N.Y.S. 2d 242 (N.Y.C. Civ. Ct. 

1967) 29 107 

Application of Shipley, 205 N.Y.S. 2d 58J 29 106 

Application of Yessner, 304 N.Y.S. 2d 901 (N.Y.C. Civ. Ct. 

1969) 29 108 

Associated General Contractors of Mass.. Inc. et al v. 

Altschuler, et al, Civ. Act. #72-3"410-F (May 31, 1973, D. 

Mass.) 22 88 

Attorney General v. Bernice Baldwin. 1972 Mass. Adv. Sh. 

345 7 59 

Attorney General v. Tillinghast. 203 Mass. 539 (1909) 39 129 

Ayer v. Commissioner of Administration, 340 Mass. 586 (1960) 5 53 

Bradford v. McQuesten, 182 Mass. 80 (1903) 7 59 

Brown v. Carlisle, 336 Mass. 147 (1958) 24 95 

Bruquier v. Bruquier. 12 N.J. Supp. 350, 79 A. 2d 497 (ch. 

1951) 29 108 

Burton \. Wilmington Parking Authority. 365 V.S. 115 (\96\) 22 88 

Buyarsky. Petitioner, 322 Mass. 335 (1948) 29 107 

Collector of Ta.xes of City of Boston v. Revere Building Inc., 

276 Mass. 576 (1931) 7 60 



148 



P.D. 12 



OPINION 

Commissioner of the Department of Community Affairs v. 

Boston Redevelopment Authority, 1972 Mass. Adv. Sh. 

1743 '. 32 

Commissioner of Public Works v. Cities Service Oil 

Company, 308 Mass. 349 (1941) 7 

Commonwealth v. Baronas, 285 Mass. 321 (1934) 24 

Commonwealth v. Davis, 284 Mass. 41 (1933) 4 

Commonwealth v. Giles, 350 Mass. 102 (1966) 16 

Commonwealth v. New England Transportation Co., 282 

Mass. 429 (1933) 11 

Commonwealth v. Reardon, 282 Mass. 345 (1933) 11 

Connelly V. Bartlett, 286 Mass. 311 (1934) 11 

Consumer Savings Bank v. Commissioner of Banks, 1972 

Mass. Adv. Sh, 929 44 

Contractors Association of Eastern Pa. v. Shultz, 311 F. 

Supp. 1002 (E.D. Pa. 1970) 22 

Devine's Case, 236 Mass. 588 (1921) 6 

Doe V. Bellin Memorial Hospital, F.2d , No. 

73-C-230 (June 1, 1973) 1 

Doe \. Bolton, 409 V. S. , 93 S. Ct. 705 (1973) I 

Duffs' V. Treasurer and Receiver General, 234 Mass. 42 ( 1919) 5 

Dunn V. Blumstein, 405 U.S. 330 4 

Dunn V. Commissioner, 281 Mass. 381 (1933) 16 

E.B. Horn Co. v. Assessors of Boston, 321 Mass. 579 (1947). 6 

Ellis V. Board of Assessors ofAcushnet, 358 Mass. 473 (1970) . 19 

Eisenstadt v. County of Suffolk, 331 Mass. 570 (1954) 5 

Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967) 22 

FPC V. East Ohio Gas, 338 U.S. 464 21 

FPC V. Louisiana Power & Light Co., 406 U.S. 621 21 

Fuentes v. Shevin, 407 U.S. 67 (1972) 35 

Fulgham V. Paul, 229 GA. 463, 192 S.E. 2d 376 (1972) 29 

Fuller y. Andres, 230 Mass. 139(1918) 7 

Glass V. Glass, 260 Mass. 562 (1927) 4 

Golden Credit Corp. v. Koplow, Commissioners, Suffolk 

Superior Ct. No. 94420, Equity 44 

Graham v. Richardson, 403 U.S. 365 (1971) 46 

Green v. Green, 351 Mass. 466 (1967) 4 

Greenaway's Case, 319 Mass. 121 (1946) 6 

Hasson v. Boothby, 318 F. Supp. 1183 (d. Mass. 1940) 9 

Hathway v. Worcester City Hospital, 475 F.2d 701 (1973) 1 

Herrick v. Butler, Nantucket Sup. Ct., Eq. No. 1524 (1972) .. 12 
Hollingsworth & Vose Co. v. Recorder of Land Court, 262 

Mass. 45 (1928) 6 

In re Application of Griffiths, 413 U.S. 717 (1973) 46 

In re Cohen, 255 N.Y.S. 616 (Sup. Ct. 1932) 29 

In re Faith's Application, 22 N.J. Misc. 412, 39 A.2d 638 

(1944) 29 

In re Snook, 2 Hilt 566 29 

Johnson-Foster Co. v. D'Amore Construction Co., 314 Mass. 

416(1943) 5 

Kirkland v. Whately, 4 Allen 462 4 

Kurtigan v. City of Worcester, 348 Mass. 284 (1965) 7 

Lajlin & Rand Co. v. Steytler, 146 Pa. (31 Crumrine) 434 (Pa. 

1892) 29 



PAGE 



59 
95 

50 

76 

67 
67 
68 

136 

88 

57 

43 

42 

51 

49 

76 

57 

80 

51 

88 

86 

86 

118 

106 

60 

49 

137 
141 
49 
57 
63 
42 
69 

57 
141 
106 

107 
106 

54 
49 
60 

105 



P.D. 12 149 

OPINION PAGE 

Luwton\. Steele, 152 U.S. 133(1893) 35 118 

Lindberg v. State Tax Commission, 335 Mass. 141 (1967) 6 57 

Lord V. Registrar of Motor Vehicles, 347 Mass. 608 (1964).... 28 102 

Lowell \. Boston. 1 1 1 Mass. 454 ( 1873) 5 5! 

Malonex v. Brackett, 275 Mass. 479(1931) 11 68 

Margolis v. Margolis, 338 Mass. 416 (1959) 29 108 

Mark v. Kahn. 333 Mass. 517 (1956) 29 108 

Massachusetts Bay Transportation Authority v. Boston Safe 

Deposit and Trust Co., 348 Mass. 538 (1965) 5 51 

Massachusetts Housing Finance Agency v. New England 

Merchants National Bank, 356 Mass.' 202 (1969) 5 53 

McLean v. 07v of Boston, 327 Mass. 118 (1951) 5 51 

Merolevitz, Petitioner, 320 Mass. 448 (1946) 29 108 

Metropolitan District Comm. v. DPU , 352 Mass. 18 (1967) ... 1 1 68 
Michaelson v. Silver Beach Improvement Assoc, Inc., 342 

Mass. 251 (1961) 7 60 

Missouri e.x rel Barrett v. Kansas Natural Gas Co., 265 U.S. 

298 21 85 

Old Colony Street Railway v. Phillips, 207 Mass. 174 (1910).. 7 60 

Opinion of the Justices, 26 1 Mass. 523 ( 1 927) 5 51 

Opinion of the Justices, 320 Mass. 773 ( 1 946) 5 51 

Opinion of the Justices, 322 Mass. 745 (1948) 5 53 

Opinion of the Justices, 334 Mass. 73 1 ( 1 956) 5 53 

Opinion of the Justices, 337 Mass. 777 ( 1 958) 5 5 1 

Opinion of the Justices, 337 Mass. 800 (1958) 5 51 

Opinion of the Justices, 347 Mass. 797 (1964) 5 51 

Opinion of the Justices, 349 Mass. 794 (1965) 5 51 

Opinion of the Justices, 354 Mass. 779 (1968) 5 50 

Opinion of the Justices, 356 Mass. 814 (1971) 5 51 

Opinion of the Justices, Mass. Adv. Sh. (1973) 535 37 123 

Opinion of the Justices, 5 Met. 587 4 48 

Opinion of the Justices, 302 Mass. 605 ( 1 939) 39 129 

Opinion of the Justices, 347 Mass. 797 (1964) 39 129 

Opinion of the Justices, 357 Mass. 827 (1970) 4 49 

Opinion of the Justices to the Senate and House of 

Representatives, 341 Mass. 738 (1960) 5 51 

Panhandle Eastern Pipe Line Co. v. Public Service 

Commission, 332 U.S. 507 , 21 85 

Peoples National Gas Co. v. Public Service Commission, 270 

U.S. 550 21 85 

Pettengell v. Alcoholic Beverages Control Commission, 295 

Mass. 473 (1936) 18 79 

Public Utilities Commission v. Attleboro Steam & Electric 

Co., 273 U.S. 83 21 85 

Putnam \. Johnson, 10 Mass. 487 (1813) 4 48 

Roe V. Wade, 409 \J.^. , 93 S. Ct. 739 (1973) I 42 

Round V. Police Commissioner for the City of Boston, 197 

Mass. 218(1908) .'...." 28 101 

Rummel v. Peters, 314 Mass. 504 (1943) 4 48 

Rusconi, Petitioner, 34\ Mass. 167(1960) 29 108 

Salem v. Eastern R.R. Co., 98 Mass. 431 (1868) 35 118 

Shapiro v. Thompson, 394 U.S. 618 4 49 

Silverman v. Board of Registration in Optometry, 334 Mass. 

129(1956) '. 34 115 



150 P.D. 12 



OPINION PAGE 

Silverman V. H/^J^t', 339 Mass. 244 (1959) 16 76 

Smith V. United States Casualty Co., 197 N.Y. 420 (1910) .... 29 106 

Sobel V. Sobel, 46 NJ Super. 284, 134 A. 2d 598 (1957) 29 106 

State ex rel Krupa v. Green, 1 14 Ohio App. 497, 177 N.E. 2d. 

616(1961) 29 107 

Stuart V. Board of Supervisors of Elections, 266 Md. 440, 295 

A. 2d 223 (1972) 29 107 

Sugarman v. Dougall, 413 U.S. 634 (1973) 46 140 

Takahashi v. Fish and Game Commission, 334 U.S. 410 

(1948) 46 140 

Tax Collector of Lowell v. Hanchett, 240 Mass. 557 (1922).... 4 50 
Taylor, et al v. St. Vincent's Hospital, #1090 (Nov. 1, 1972) 

(D. Mont.) (unreported) 1 44 

Texas v. Florida, 306 U.S. 398 4 49 

Town Crier, Inc. and others v. Chief of Police of Weston, 

Mass., 1972 Mass. Adv. Sh. 891, 895 ." 3 48 

Truax v. Raich, 239 U.S. 33 (1915) 46 140 

Treasurer and Receiver General v. Revere Sugar Refmeiy, 

247 Mass. 483 (1924) 7 59 

U.S. V. Guest, 383 U.S. 745 4 49 

Weeks \. Grace, 194 Mass. 296 ( 1907) 7 60 

Weiner v. City of Boston, 342 Mass. 67 (1961) 16 76 

West Roxbury \. Stoddard, 7 AWen 158 24 95 

Worcester \. Springfield, 127 Mass. 540 (1879) 4 49 

Yick Wo V. Hopkins, 1 18 U.S. 356 (1886) 46 140 



TABLE OF MASSACHUSETTS STATUTES CITED 

G.L. 3, §§6, 6A (repealed) 36 121 

4, §7 3 47 

4, §7(26) 23.28 89.101 

6, §134 20,40 81.130 

6, §§156A, 156B 41 131 

6, §§167-168 23 89 

6A, §22 8 62 

6A, §28 8 61 

7, §4D 38 127 

7, §5 38 127 

7, §28 33 113 

7, §30B 8 61 

8, §10A 37 123 

c. 9 §2 38 128 

c. 11 §§5,2 38 128 

13, §16 34 115 

13, §32 45 139 

13, §36 31 111 

13. §43 31 111 

13, §§54, 57 31 110 

16, §9 38 127 

16, §14 35 117 

22, §3 43 135 

22, §6 43 135 

22, §9A 43 135 



P.D. 12 151 

OPINION PAGE 

G.L. 29, §7 8 62 

29, §31 45 139 

30A, §1(5) 9 63 

30, §21 15.45 73.139 

30, §25 33 113 

30A. §6 32 112 

30, §45(1) 37 122 

30, §45(4) 37 122 

31, §§2(b), 2A(1), 12A 6 56 

31, §5 17 77 

31, §47 17 77 

32, §1 38 126 

32, §3(2)(g) 38 126 

32, §69 30 109 

32, §77A, Option B 30 110 

32, §101 30 109 

35, §5 28 101 

36, §21 45 139 

40, §21(1) 24 92 

40, §41 24 94 

41. §55 17 76 

46, §1 29 105 

46, §3 29 105 

66, §2 20.40 81.130 

66, §10 23.28 89.101 

G.L. 69. §1 22 89 

69. §§30-31 36 119 

70. §§I-8 Appendix 22 88 

71. §68 22 87 

75. §14 37 122 

75, §11 37 121 

75D, §14 28 100 

90. §21, Revised by St. 1973, c. 461 3 46 

90, §26 28 102 

90, §29 38 126 

90B, §ll(k) (n) 24 92 

903, §15(a)(b)(c) 24 91 

91, §21 7 59 

91, §23 7 59 

93, §218 28 102 

93, §§29-33 35 117 

93A, §2a 11 68 

93D. §§1-7 35 117 

111, §62K 9 63 

111, §62M 9 63 

111. §§123-125 35 117 

11 IB 3 46 

lllB. §8 3 46 

112, §§66-73B 34 115 

112. §73 34 115 

112. §87A(a) 46 140 

G.L. 115. §5 14 71 

119, §68B 13 70 

131, §5 2 45 

131, §12 2 46 



152 P.D. 12 

OPINION PAGE 

131, §32 2 45 

131, §33 2 45 

131, §45 24 91 

138, §17 18 78 

141, §1 12 69 

141, §3(3) (4) 26 98 

142 12 69 

142, §3G 26 99 

143, §1 19 79 

143, §2A 27 100 

143, §30 19 79 

143, §3L 27 99 

143, §62 32 112 

143, §§68-70 32 112 

147, §1 43 135 

148, §4 10 65 

148, §9 10 64 

148, §10 10 64 

148, §10a 10 64 

149, §44A 22 87 

151B, §1 25 96 

G.L. 152, §1(4) 41 132 

152, §69 41 131 

152, §74 41 132 

159, §14 II 68 

159A, §11A 11 68 

159A, §15 11 68 

164, §1 21 82 

164, §2 21 82 

166, §32 27 100 

168, §§37, 37B 44 137 

180, §1 36 121 

180, §7 36 121 

180, §13 36 121 

207 4 48 

207. §§7. 33. 33A amended by St. 1971. c. 255 4 48 

207. §11, 12 29 105 

210, §12 29 107 

218, §12 23 89 

218, §69 23 91 

218, §70 23 91 

218, §75A 23 91 

218, §79 23 91 

221, §14 23 89 

260. §5 II 68 

260, §12 II 68 

268A 43 135 

268A, §23 -"^1 111 

275. §4 24 93 

276^ §85 23 91 

St. 1811, ch. 94, §1, §11 36 

St. 1931. ch. 399. §5, as amended by St. 1933. ch. 93 11 

St. 1943. ch. 549 36 

St. 1948. ch. 645 22 87 

St. 1963. ch. 526. §1 30 



P.D. 12 153 

OPINION PAGE 

St. 1965, ch. 572, §42 22 87 

St. 1968, ch. 646, as amended by Act 1969, ch. 325 and 

Acts of 1973, ch. 692 16 73 

St. 1969. ch. 704 35 117 

St. 1972, ch. 802, §13, amending G.L. c. 143, §2A 27 100 

St. 1972, ch. 802. §18, amending G.L., c. 143, §3L 27 100 

St. 1973, ch. 466, §2, §7 39 128 

St. 1973, ch. 702 38 126 

St. 1973, ch. 843, inserting new §127M in G.L. c. Ill 25 

St. 1973, ch. 941 28 104 

St. 1973, ch. 1050 23 91 

St. 1973, ch. 1173 42 134 



TABLE OF MISCELLANEOUS MASSACHUSETTS CITATIONS 

OPINION PAGE 

Article 48, Mass. Constit 42 n4 

Art. 62. §§1, 3. Art. of Amend., Mass. Constit 5 52,53 

Art. 88, Art. of Amend., Mass. Constit 5 52 

Article LXV, Art. of Amend., Mass. Constit 39 128 

Art. LXXXIX, Art. of Amend., Mass. Constit 22 87 

By law. Town of Sharon, Art. 16 24 91 

Criminal Code of Georgia, ch. 26-1202(e)l 1 43 

House Bill No. 5233 (1973) 5 50 

Mass. Gov'r Exec. Order #74 22 87 

Mass. Regulatory Sections/DPU 94-95, 85 21 82 

St. 1833 c. 152, §2 7 60 

St. 1866c. 149 7 59 

St. 1969 c. 432 7 59 

St. 1973 c. 320 6 55 

Federal Statute 

15 U.S.C. §717(a)(5) 21 82 

42 U.S.C. §291 1 43 

42 U.S.C. §1983 1 43 

United States Constitutional Provisions 

Art. l.§8. ch. 3 21 85 

14th Amendment , 1.46 42.140 

Miscellaneous References 

C. Ewen, A History of the British Isles, 391 (London 

1930) '....^ 29 107 

19 Halsburg's Laws of England 829 (3d 1957) 29 107 

Note, 44 Cornell L.Q. 144(1958) 29 108 



'.'rt *' 



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