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Public Document No. 12

Ctie Commontaieaiti) o( s^nssatbusttts



Year ending June 30, 1954


Public Document No. 12

Cbe Commontoealti) o( [email protected])usetts



Year ending June 30, 1954



Cl)e Commontoealtl) of ^a00aci)U0etts;

Boston, December 1, 1954.
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, 1954.

Respectfully submitted,


Attorney General.

Cfte Commontoealtf) of ^as0ac|)U0etti8;


Attorney General

First Assistant Attorney General
Fred Winslow Fisher

Assistant Attorneys General
Jason A. Aisner^ James F. Mahan

Harris J. Booras- Charles F. Marsland, Jr.*

Samuel H. Cohen* Lowell S. Nicholson^

Malcolm M. Donahue John V. Phelan

Joseph H. Elcock, Jr. Harris A. Reynolds

Daniel J. Finn ^ William J. Robinson

DoRicE S. Grace Arnold H. Salisbury

Saul Gurvitz Barnet Smola

Matthew S. Heaphy Norris M. Suprenant

Andrew T. Trodden

Assistant Attorneys General assigned to Department of Public Works
Vincent J. Celia Floyd H. Gilbert

James C. Gahan, Jr. Max Rosenblatt

David L. Winer

Special Assistant Attorney General assigned to Department of Public Works
Frank Ramacorti

Assistant Attorneys General assigned to Division of Employment Security
Lazarus Aaronson^ Stephen F. LoPiano, Jr.

Assistant Attorney General assigned to Office of State Rent Co-ordinator
Hugh Morton

Assistant Attorneys General assigned to State Housing Board
Milton Abelson Keesler H. Montgomery

Joseph H. Sharrillo^

Assistant Attorney General assigned to Veterans' Division
Fred L. True, Jr.

Chief Clerk to the Attorney General
Harold J. Welch

Administrative Legal Consultant to the Attorney General
^ James J. Kelleher

1 Appointed July 20, 1953. * Appointed Jan. 1, 1954.

- Resigned Dec. 4, 1953. « Appointed Apr. 9, 1954.

3 Appointed Nov. 17, 1953.

$12,000 00

249,355 00

35,000 00

15,000 00

1,470 77
19,000 00

For the Fiscal Year, July 1, 1953, to June 30, 1954

A ppropriations.

Attorney General's Salary ........

Administration, Personal Services and Expenses ....

Claims, Damages by State Owned Cars ......

Small Claims ..........

New York, New Haven and Hartford Railroad Investigation (Old
Colony Division) .........

Veterans' Legal Assistance ........

Total $331,825 77


Attorney General's Salary ........

Administration, Personal Services and Expenses ....

Claims, Damages by State Owned Cars ......

Small Claims ..........

New York, New Haven and Hartford Railroad Investigation (Old
Colony Division) .........

Veterans' Legal Assistance ........


Financial statement verified (under requirements of c. 7, § 19, of the General Laws),
November 16, 1954.

Approved for publishing.



$12,000 00

248,628 96

35,000 00

15,000 00

1,466 37

18,627 17

$330,722 50

^be Commontoealtl) of Q^as0ac|)U0ett0

Department of the Attokney General,
Boston, December 1, 19.^4.

To the Honorable Senate and House of Representatives.

Pursuant to the provisions of section 11 of chapter 12 of the General
Laws, as amended, I herewith submit my report.

The cases requiring the attention of this department during the fiscal
year ending June 30, 1954, totaUng 16,175, are tabulated as follows:

Extradition and interstate rendition

Land Court petitions .....

Land damage cases arising from the taking of land

Department of Public Works

Metropolitan District Commission

Department of Mental Health

Department of Education

Armory Commission

Department of Conservation

Department of Public Utilities

New Bedford Textile Institute
Miscellaneous cases, including suits for the collection of money due the
monwealth .........

Estates involving application of funds given to public charities
Settlement cases for support of persons in State institutions

Pardons :

Investigations and recommendations in accordance with G
§ 152, as amended .......

Workmen's compensation cases, first reports ....

Cases in behalf of Division of Employment Security

Cases in behalf of Veterans' Division .....













In the Attorney General's last annual report, filed with the Secretary
of State one year ago, attention was called to the fact that the depart-
ment is the legal counsel for a multi-billion dollar business — the Com-
monwealth of Massachusetts.

It was also pointed out that as such, the department's duties are mani-
fold and varied and that the already grave and heavy responsibilities of
the office of Attorney General are ever increasing.

Events of the 12 months of the fiscal year July 1, 1953, to June 30,
1954, more than justify those statements.

8 P.D. 12.

The office of the Attorney General has sponsored new legislation, cre-
ated new divisions within the department, rendered legal opinions to the
proper authorities, represented the Commonwealth and the various State
departments, officers and commissions in all judicial proceedings, examined
and approved town by-laws, conducted investigations into the conduct of
various agencies and certain public officials of the Commonwealth, co-
operated with the district attorneys, conscientiously administered the
law and vigorously prosecuted all violators.

And yet, as time-consuming as these many activities have been, the
office of Attorney General has also been able to give assistance to the
needy, such as the unfortunate victims of the disastrous Worcester tor-
nado and the hurricane on Cape Cod, continue economical land-taking
reforms, initiate a campaign to clean up comic books and continue aid to

Staffed by a corps of Assistant Attorneys General and law clerks whose
character, ability, experience and training are above question, the office
of the Attorney General also continued its drives against Communism,
crime and corruption, took action against fake charities, established a
Division of Charitable Trusts within the department and carried out a
successful campaign of ridding the State of obscene literature.

In August of 1953, the Attorney General of the Commonwealth was
elected Vice-President and one of six members of the Executive Board of
the National Association of Attorneys General, and was also named
Chairman of the Eastern States Conference of Attorneys General, a terri-
tory'' which includes Maine, New Hampshire, Vermont, Rhode Island,
Connecticut, Massachusetts, New York, New Jersey, Pennsylvania, Dela-
ware, West Virginia, the Virgin Islands and Puerto Rico.

In October, 1953, he was appointed a member of the Committee on
Narcotic Drug Control of the National Association of Attorneys General,
which prepared a bill for introduction into the next session of Congress
providing for the reception of narcotic drug addicts in appropriate Federal
hospitals upon commitment thereto by the courts.

Altogether, more than 150 separate divisions were established in the
office of the Attorney General and all were integrated as a whole. Follow-
ing is a more detailed account of a few of the department's activities in
solving the numerous and intricate problems which arise daily during its
conduct of the Commonwealth's legal business. No attempt has been
made to list the many hundreds of individual matters handled at all the
desks in the department and day after day in all the courts of the Com-
monwealth and in the Federal courts.

Land Damage Division.

The organization and procedure installed for the trial and disposition
of land damage cases continued to prove both highly efficient and economi-
cal ; it greatly accelerated payment of damages to landowners and resulted
in prompt termination of interest charges running against the Com-

P.D. 12. 9

Briefly, after conferences were held with members of the judiciary and
of the legal profession, the procedure consisted in establishing a separate
Land Damage Division in the Department of the Attorney General, and
staffing this division with six Assistant Attorneys General whose activities
are exclusively devoted to the disposition of land damage litigation.
Every land damage claim was reviewed, conferences were held with at-
torneys for the landowners in efforts to effect settlements, and numerous
pre-trial conferences were held Avith justices of the Superior Court in many
counties, resulting in disposition of many cases by settlement. Every dol-
lar of each settlement reached has been recorded in the public records of
the Superior Court for each count3^

The number of cases disposed of during the above period totaled 447.
The petitioners in these cases sought damages in the amount of $7,618,-
935.76. The Attorney General's office disposed of these cases either through
compromise or trial in the amount of $3,925,529.61, saving the Common-
wealth $3,693,406.15.

In recapitulation, for the period beginning with January 22, 1953, and
ending June 30, 1954, this division disposed of 734 cases. The total amount
of damages sought by the petitioners amounted to $14,696,701.76. These
cases were disposed of by the Attorney General's office through trial or
adjustment in the amount of $6,962,930.61, or a difference between the
amount requested and the amount paid out of $7,733,771.15. The inter-
est charges involved affecting these cases which were saved by the Com-
monwealth amounted to $1,138,383.29.

Criminal Division.

The Criminal Division Avhich was established early in 1953, continued
to work effectively and rapidly. I wish to reiterate that I have complete
confidence in the overwhelming majority of our local law enforcement
officers, but this division moved quickly whenever complaints and re-
quests for assistance were received from interested citizens all over the
Commonwealth and there appeared no disposition on the part of any
officials to enforce the laws.

With the co-operation of State troopers from the Department of Public
Safety, raids were conducted on establishments where it had been reported
that bookmaking operations were being conducted in the cities of Law-
rence and Chelsea. In the former city the office of the Attorney General
prosecuted 82 cases of persons charged with conspiracy on gaming charges,
and in the latter city 40 were prosecuted.

After careful investigation by this division, a .12 calibre pistol which a
California manufacturer was selling here through the mails was banned
in Massachusetts. A single-shot weapon called a "Kruger 98," this gun
was an exact duplicate on a slightly smaller scale of a German Luger pistol;
made of plastic, with a four-inch steel barrel, it shot a small pellet with
sufficient force to drive it through cardboard. Most of the sales had, of
course, been made to minors.

10 P.D. 12.

The Criminal Division also investigated and exposed two vicious "sym-
pathy schemes" under which blind persons in Massachusetts were being
callously exploited. The investigations were ordered after the department
was informed that a Pennsylvania and a Chicago rug company were sell-
ing machine-made rugs here under the misrepresentation they were made
by blind persons and sold for the benefit of the blind here. Actually, 80
per cent of the rugs were made on machines by sighted persons, and only
20 per cent of the rugs were tied or finished off by blind persons. During
the investigation it was discovered that the Chicago company alone had
sold more than S 1,000,000 worth of such rugs in Massachusetts since 1931,
and had been doing so illegally since 1937, when the Legislature passed a
law against such operations.

Both companies stopped doing business in Massachusetts after the
department threatened criminal action if they continued.

The Criminal Division also handled the cases of 377 defective delin-
quents seeking their release from State institutions. Of the total, 246 such
persons were granted their release, 69 were recommitted, 15 were adjudged
to have been properly committed and their petitions were denied, 21 are
presently undergoing observation periods, and 23 cases are in the Probate
Courts. These matters were all handled under legislation sponsored by
me in 1953, the so-called "Fingold Law," St. 1953, c. 645. The consti-
tutionality of this new statute was established by the case of Dubois,
Petitioner, 331 Mass. 575.

This division also appeared for the Commonwealth in 12 habeas corpus
proceedings brought by persons committed as criminally insane, and in a
number of proceedings instituted by petitions for wi'its of mandamus and
writs of error. It handled some 90 extradition cases, including requests
from other States and requests by the Commonwealth of Massachusetts
to other States, and, after investigation, made recommendations upon 37
pardon petitions.

Attorney General v. Basil W. Flynn.

Following several months of intensive investigation, the Attorney Gen-
eral ordered the institution of proceedings for the removal from office of
District Attorney Basil Winslow Flynn, of the Plymouth District. This
proceeding being of so serious a nature, I felt personally obligated to under-
take the presentation to the Supreme Judicial Court of the charges and
evidence against the district attorney. The basis of the charges related to
certain defalcations by Mr. Flynn, and my authority for instituting the
proceedings stemmed from the statutory obligation placed upon me of
enforcing the proper application of charitable funds.

Certain preliminary motions consisting of a motion to dismiss, motion
to decline jurisdiction and a demurrer were filed by the district attorney
in answer to the charges. The Supreme Judicial Court overruled the two
motions and the demurrer, and on April 12, 1954, the matter was brought
to a hearing before the full bench of the Supreme Judicial Court.

The district attorney was charged with violating his fiduciary obliga-
tions to a charitable trust of which he was trustee by having purchased

P.D. 12. 11

various properties of the trust through straws, whereby he amassed con-
siderable personal profit, without the knowledge of his co-trustees. In
addition, he was charged with keeping for his own use certain monies paid
by the trust for secretarial purposes, with having allowed a company
operated by the trust to pay certain health insurance covering himself
and his family, and with impeding the investigation of the Attorney Gen-
eral and faiUng to make full and frank disclosure of his administration of
the trust.

The court found the above charges estabhshed by the evidence pre-
sented, and in an opinion handed down on May 28, 1954, stated that sufl&-
cient cause was shown for the removal of the respondent from the office
of district attorney for the Plymouth District. See Attorney General v.
Flynn, 331 Mass. -113. This case is the latest in the series of removal
proceedings under G. L. c. 211, § 4, but is to be distinguished from
the two best-known petitions under that statute. Attorney General
V. Tufts, 239 Mass. 458, and Attorney General v. FeUetier, 240 Mass. 264,
in that none of the charges against Flynn had to do with his administration
of the office of district attorney. The decision will stand as a landmark
in the law, holding as it does, for the first time in Massachusetts if not in
the entire United States, that the public good may, in a proper case, re-
quire the removal of a public officer by reason of purely private acts.

Charitable Trusts.

For the first time in 105 years there has been an amendment to the
law with reference to public charities. The duties of the Attorney General
with reference thereto are stated in G. L. c. 12, § 8, to be:

"He shall enforce the due application of funds given or appropriated to public
charities within the commonwealth, and prevent breaches of trust in the adminis-
tration thereof."

The department investigated the public charity situation in Massachu-
setts and found a great need for stricter supervision of some trustees who
had large sums of money to handle for the purpose they were given. Tt
was concluded that a separate division should be set up for the purpose of
further investigation and supervision of the public charities under the
jurisdiction of the Attorney General. Therefore, I filed a bill in the Legis-
lature to establish a Division of Public Charities in the Department of
the Attorney General. This bill was enacted and became law on June 1,
1954. It is chapter 529 of the Acts of 1954.

Immediately upon passage of the act, steps were taken to estabhsh this
Division of Public Charities, thus fulfilling a need expressed by many former
Attorneys General. The public charities within the concern of the Attor-
ney General may be "more fully defined as a gift to be applied for the
benefit of an indefinite number of persons." Jackson v. Phillips, 14 Allen

The new law requires the trustee or trustees or governing board of every
pubUc charity to file a written report annuaUy on or before June first.

12 P.D. 12.

^'Such report shall state: the names and addresses of the trustees, or if
the public charity is an organization, the name and address of the organiza-
tion and the names and addresses of the members of its principal govern-
ing board and of its principal officers, and if the organization is a corpora-
tion, the statute under which it was incorporated; the aggregate value of
endowment and other funds, the aggregate value of real estate, and the
aggregate value of tangible personal property held and administered by
the public charity for charitable, educational, benevolent, humane or phil-
anthropic purposes or for other purposes of public charity, all as shown by
the books of the public charity at the end of said fiscal year, and the
aggregate income and the aggregate expenditures of the public charity for
such fiscal year." The filing of reports "shall not apply to any property
held for any religious purpose by any public charity, incorporated or
unincorporated." There is a filing fee of three dollars for each report.
The division may upon application to the courts examine books and rec-
ords and investigate the administration of any public charity.

Heretofore, only copies of accounts filed in the Probate Court were re-
quired to be presented to the Department of the Attorney General. Now,
all public charities, incorporated or unincorporated, are required to file

A total of 1,032 matters involving public charities has been considered
by the department during the past year. These matters included (1) peti-
tions for allowance of wills containing public charitable bequests or cre-
ating public charitable trusts; (2) petitions for instructions and for con-
struction of wills; (3) petitions for the sale of real estate; (4) petitions
for amalgamation; (5) petitions for allowance of accounts of executors
and trustees; (6) petitions for approval of settlements and compromises;
(7) petitions for application of the doctrine of cy pres; (8) petitions for
the appointment and removal of trustees; (9) miscellaneous petitions.
Many of these petitions required appearances in the Supreme Judicial
Court and in the Probate Court.

A greater number of matters involving public charities has been handled
in the period covered by this report than ever before. Trustees who had
not filed accounts in far too many years are rushing to file them now. As
a result, millions of dollars in dormant funds will now be put to the use
intended by the testators.

Horror Comic Books.

One of the most important problems confronting the department was
that of the crime and horror comic books which were flooding the Common-
wealth and doing incalculable harm to the youth of our State. The most
difficult part of the problem was how to get rid of such so-called literature
without establishing any form of censorship.

First, the district attorneys were called in for a conference, out of which
a committee was appointed consisting of three district attorneys —
George E. Thompson of Middlesex County, Stephen A. Moynahan of
Hampden and Berkshire Counties, and Garrett H. Byrne of Suffolk County

P.D. 12. 13

— and the Attorney General. This group then met with the distributors
and dealers in Greater Boston, who promised their utmost co-operation in
ridding their newstands of such books. It should be pointed out that it
was necessary to work with the dealers and distributors instead of the
pubUshers, since most of such comic books are published outside the
Commonwealth. All of the distributors and dealers at the meeting agreed
forthwith that upon notification from any law officer, they would within
24 hours remove any objectionable book from their newsstands.

Following this agreement, it was necessary to confer with a group rep-
resenting the chiefs of police of the Commonwealth, who also promised
their co-operation with the plan and issued a notice to that effect to all
members of the Massachusetts Police Chiefs Association. In aid of this
program, the department compiled a summary of the laws pertaining to
obscene literature in G. L. c. 272, §§28 through 28H, for distribution to
all police chiefs in the Commonwealth.

This whole plan was put into effect immediately, with every prospect
for success through co-operation rather than censorship. More than that
the plan was given national attention when representatives of the comic
book industry (except for three publishers) met in New York and ap-
pointed Judge Charles F. Murphy to administer a stiff new code of ethics
to be drawn up by the industry to offset the deserved criticism that horror
"comic" books lead to youthful crime. With the comic book industry
agreeing voluntarily to police its own publications, again there was no
taint of censorship.

Telephone Rate Case.

The New England Telephone & Telegraph Company petitioned for in-
crease of rates of $10,225,000 to the Department of Public Utilities. The
department allowed it $7,446,800. The telephone company appealed to
the Supreme Judicial Court claiming the decision of the department was
confiscatory and unconstitutional. It raised three major points: (1) The
Rate Base. (2) Rate of Return. (3) Debt Ratio.

As to the rate base, the company raised for the first time in this Com-
monwealth the issue as to whether or not the Department of Public Utili-
ties was required to use the original cost (prudent investment) theory or
fair value or reproduction cost theory in arriving at a rate base. The
department u.sed the original cost theory and refused to use the fair value
theory which was 52.9% higher than the original cost. The department,
through the Attorney General, contended it had a right to use the original
cost theory and was not required by our Constitution to use the fair value
theory in arriving at a rate base. If the contention of the Telephone
Company prevails it would mean an increase of about $11,000,000 to the

As to the rate of return, the company asked for 7.33% but in its brief
changed it to 6.7%. The Department of Public Utilities allowed 6.313%
which the company claims in its appeal is confiscatory and unconstitu-
tional. If the Supreme Judicial Court upholds the department's percentage
it will result in a substantial saving to the ratepayer.

14 P.D. 12.

As to debt ratio, the company asked for a 35%-debt 65%-equity ratio,
but the department would only approve a 45%-debt 55%-equity ratio.
If the Supreme Judicial Court decides that the department was correct,
then this would mean a saving of about $3,000,000 to the ratepayers.

The company contended that it could not earn the rate of return allowed
by the Department of Pubhc Utilities during the foreseeable effective
period. This is not a legal question but a question of arithmetic to be
determined at a later date.

In this case the Attorney General represented the public at all the hear-
ings before the Department of Public Utilities and represented the depart-
ment on the appeal of the company to the Supreme Judicial Court. I am
confident that the Supreme Judi

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