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Public Document No. 12



Ci)e Commontoealtf) of s^assmtvisttts



REPORT



ATTORNEY GENERAL



Year ending June 30, 1945




Publication of this Document Approved by the Commission on Administration and Finance.
900. 4.'46. 18434.



Public Document No. 12



Cbe Commontoealtb of [email protected]|)usetts



REPORT



ATTORNEY GENERAL



Year ending June 30, 1945




Publication of this Document Approved by the Commission on Administration and Finance.
900. 4-'46. 18434.



r



Cbe Commontoealti) of a^a00ac|)u$ett0



Depahtment of the Attorney General,
BosTox, January 9, 1946.

To the Honorable Senate and House of Representatives.

I have the honor to transmit herewith the report of the department
for the year ending June 30, 1945.

Very respectfully,

CLARENCE A. BARNES,

Attorney General.



Cfje Commontoealtf) of d^asmthmtm



DEPARTMENT OF THE ATTORNEY GENERAL
State House



J



Attorney General
CLARENCE A. BARNES



First Assistant Attorney General
J. J. Spiegel

Assistants

Roger Clapp William Gardner Perrin

Nathan B. Bidwell Herbert D. Robinson

William S. Kinney William H. Sullivan

Charles Shulman Conde J. Brodbine

George P. Drury ^ Beatrice H. Mullaney

Michael A. Fredo Vincent J. Panetta^

David J. Coddaire Thomas F. McLaughlin
Alfred E. LoPresti



Assistant Attorneys General on Leave of Absence
William G. Andrew ^ Ernest Brenner ^

Assistant Attorneys General assigned to Veterans^ Division
Nicholas DeLeo Joel L. Miller

Assistant Attorneys General assigned to Division of Employment Security
Saul Gurvitz Joseph S. Mitchell

' Specially assigned to N. Y., X. H. & H. R.R. and Boston Elevated Railway case^.

- Resigned July 31, 1945.

' On leave of absence because of duties as associate county commissioner.

* On military leave of absence.



Chief Clerk to the Attorney (icneral
Harold J. Welch

LiM Clerk to the Attorney General
James J. Kelleher

Director of Division of Collections
W. Forbes Robertson



STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period from July 1, 1944, to June 30, 1945

Attorney General's salary $ 8,000 00

Assistants and others, salaries ........ 138,900 00

Expenses 11,000 00

Settlement of damages by state-owned cars (CI. L. (Ter. Ed.) c. 12, § 3B) 8,000 00

Settlement of certain claims (G. L. (Ter. Ed.) c. 12, § 3A) . . 3,000 00

Transfer for temporary salary increases ...... 1,36000



$170,260 00



E.rpen'litiire>'.

For salary of the Attorney General $ 8,360 00

For salaries of assistants and others :

Actual expenditures $133,778 23

Amount reserved ...... 6,121 77

139,900 00



For office expenses : '

Actual expenditures $9,223 63

Amount reserved ...... 1,755 37



10,979 00

For settlement of damages by state-owned cars (G. L.

(Ter. Ed.) c. 12, § 3B)" 4,795 72

For small claims (G. L. (Ter. Ed.) c. 12, § 3A) 2,996 48



Total expenditures $167,031 20

Financial statement verified.

By J. D. MacDONALD,

For the Comptroller.

Approved for publishing.

FRAXCIS X. LAXG,

Comptroller.
November (J. 1945.



Cf)e CommontDealtl) of ^a00act)U)BEett0



Department of thk Attoknky General,
Boston, January 9, 1946.

To the Honorable Senate and House of Representatives.

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

The cases requiring the attention of this Department during the fiscal
year ending June 30, 1945, totaling 8,451, are tabulated as follows:

Corporate franchise tax cases ......... 96

E.xtradition and interstate rendition . . . . . 115

Land Court petitions .......... 71

Land damage cases arising from the taking of land:

Department of Public Works ........ 46

Metropolitan District Commission ....... 2

Metropolitan District Water Supply Commission . . . . JO

Miscellaneous cases, including suits to require the filing of returns by cor-
porations and individuals and the collection of money due the Com-
monwealth .......... 3,715

Petitions for instructions under inheritance tax laws ..... 6

Estates involving applications of funds given to public charities . . . 733

Settlement cases for support of persons in state hospitals .... 26

Pardons :

Investigations and recommendations in accordance with G. L. (Ter. Ed.)

c. 127, § 152, as amended 100

Workmen's compensation cases, first reports ...... 1,994

Cases in behalf of Division of Employment .Security ..... 1,537

To preserve the dignity of the individual, carrying with it all of the
implications of freedom, liberty and justice, is to my mind one of the
paramount duties of the chief law enforcement officer of the Common-
wealth.

To preserve that dignity men and women throughout the world have
suffered beyond the power of words to describe. To preserve that dignity
countless millions have sacrificed their lives.

Upon a.ssuming the office of Attorney General of Massachusetts, I
resolved upon a course of conduct for this Department that would preserve
the dignity of the individual — that would be devoid of ballyhoo and
sensation. I resolved that all matters would be carefully and painstak-
ingly investigated. I realize fully the power of the criminal indictment,
and how, all too easily, the reputation and standing of respectable citizens



8 P.D. 12.

in the C-ommon wealth could be irreparably damaged by the careless use
of this power.

To that end this Department has worked harmoniously with the Dis-
trict Attorneys throughout the Commonwealth and they have had an
open door to consult with either my assistants or myself on all matters
affecting the public welfare.

The Attorney General has continuously counseled the many depart-
ment heads of the Commonwealth and frequently informal advice has
been given. I have endeavored at all times to conduct this Department
efficiently and with a high standard of administration, ever remembering
that the citizens of the Commonwealth are entitled to able legal repre-
sentation.

I pledged the people of Massachusetts when I assumed the office of
Attorney General that I would immediately establish a veterans' division
which would freely advise and act in behalf of the veteran, his widow,
orphans and other dependents. This has been done. Two assistants
devote their entire time to this division. A complete file of the work of
the division is kept in a card index containing a record of the applicant's
problem and a notation of the advice given and work done. In addition
there have been innumerable personal requests for information and advice
— many by telephone. Many letters are received in which requests are
made for information. Month by month an increasing number of town
and city officials, department heads and legislators seek advice or informa-
tion. Many veteran organizations have made use of this division. The
division is expanding and we are constantly seeking means and adopting
plans which will enable the division to function at the highest peak of
efficiency.

I should like to illustrate briefly the varied cases that have come before
this division:

A father of a discharged disabled veteran was very much distracted
about his son out West who had become involved in a confused court
situation. This division enabled the father to contact the proper authori-
ties and was able to straighten out the case in such a manner that the
boy is now home and in happy surroundings with his parents.

A veteran who was a doctor prior to entering the service became dis-
abled while in combat areas, engaged in hospital work, and desired to
resume his practice upon his discharge from the service. There was some
difficulty regarding his doctor's certificate and license as he had changed
his name while in the service and there were complications relative to
his going back into practice under the changed name. This division went
into the case very thoroughly and as a result he was given a new certifi-
cate and license under his present legal name and was thereby enabled
to resume his practice.

A mother of a son who was killed in action sought advice on the situa-
tion where there was a divorce. The wife filed an appeal before a decree
became absolute, while the son was in the service. There was a question
of custody of the children and a very much involved probate situation.
The family had a lawyer who suggested that the veteran angle be looked
into. This division actively co-operated with the attorney and a final
adjustment was made.



IM). 12. 9

The development of the ahport at Boston is of paramount importance
to all of the citizens of Massachusetts. On behalf of the Massachusetts
Aeronautics Commission and in conjunction with the city of Boston, I
argued the case of the Civil Aeronautics Board (Federal i North Atlantic
Route before the Civil Aeronautics Board in Washington, seeking to have
Boston's Logan International Airport certificated as a terminal on the
proposed air i-outes to Europe. The Board's decision has placed Boston
as a co-terminal on all the named routes to F]urope.

This report does not detail the many activities of the Department.
( )ur work in the coiu'ts — state and federal — has proceeded without fan-
fare. Contracts of various departments have been examined and approved,
settlements of inheritance taxes approved, state note issues approved,
hearings have been attended and conducted on behalf of various state
boards by the Department, bond issues have been approved, leases, have
been approved, conferences held with and advice given to state commis-
sions, boards and divisions, consultations held with the Division of Civil
Service, and interviews and consultations with city solicitors, town coun-
sel, members of the Legislature and attorneys.

I sincerely thank the Assistant Attorneys General and the other mem-
bers of the Department for their services and loyalty, not only to myself,
but to the Commonwealth of Massachusetts.

Respectfully submitted,

CLARENCE A. BARNES,

Attorney General.



OPINIONS.



Walden Pond State Reservation — Powers of Commission — Lack of
Authority to Restrict.

July 18, 1944.
Walden Pond State Reservation Commission.

Gentlemen : — You have asked me whether the Walden Pond State
Reservation Commission is within its proper jurisdiction in restricting
boating on Walden Pond and requiring that privately-owned boats be
removed from the pond and reservation after being used.

It is my opinion that your Commission has no authority to restrict
boating on the pond or to require the removal of privately-owned boats
therefrom, but that you may make reasonable rules and regulations for
the removal of privately-owned boats from the reservation after they have
been used.

The Walden Pond State Reservation was acquired by gift and is de-
fined by St. 1922, c. 499, as "certain lands and rights therein situated on
the shores of Walden pond in the towns of Concord and Lincoln." The
statute further provides that "the title to such land shall be and remain
in the commonwealth of Massachusetts." It is significant that the statute
refers Only to lands and rights therein and does not mention Walden Pond.

Your Commission is given full power and authority over the Walden
Pond State Reservation (St. 1922. c. 499, § 3), is authorized to make rules
and regulations for the government and use of the reservation (St. 1925,
c. 26, § 1), and, accordingly, may require the removal of boats from the
reservation after they have been used, but may not restrict the use of
boats on Walden Pond, since it is no part of the area committed to its
icontrol.

Very truly yours,

Robert T. Bushnell, Attorney General.



Department of Mental Health — Transfer of Surplus Supplies from one
State Hospital to Another Unauthorized.

Aug. 11, 1944.

Dr. Clifton T. Perkins, Commissioner of Mental Health.

Dear Sir: — You have asked my opinion as to whether the Depart-
ment of Mental Health may transfer a surplus of supplies or equipment
from one institution to another institution within the department at a
price determined by the department.

I answer your inquiry in the negative.

St. 1943, c. 344, § 2, amended chapter 7 of the General Laws by inserting
therein a new section, 25A, which reads as follows:

"The state purchasing agent may provide for the transfer of supplies
from one state agency to another when, in his opinion, such transfer is for
the best interests of the commonwealth, and may provide for the making
of suitable adjustments on the state comptroller's books on account of



P.D. 12. II

such transfer. He shall also have authority to approve the amount or
quantities of all supplies and materials purchased by state agencies, not-
withstanding that such agency has conformed to the regulations relative
to such purchases and that an appropriation is available therefor. In
case an application by a state agency is not approved by the state pur-
chasing agent, such agency may appeal in writing to the commission,
whose decision shall be final."

The foregoing section makes the transfer of supplies from one state
agency to another subject to provisi(ms made or to be made by the state
purchasing agent. The price to be paid for such supplies or "the making
of suitable adjustments on the state comptroller's books on account of
such transfer" is within the scope of such provisions. A transfer of equip-
ment or supplies from one institution to another within the same depart-
ment may fairly be said to be a "transfer of supplies from one state agency
to another," as the quoted words are used in said section 25A.

It would appear that the disposal of agricultural products is regulated
by the provisions of O. L. (Ter. Ed.) c. 7, § 22 (11), which is as follows:

"The commissioners of the commission, sitting as a board, shall, sub-
ject to the approval of the governor and council, make rules, regulations
and orders which shall regulate and govern the manner and method of
the purchasing, delivering and handling of, and the contracting for, sup-
plies, equipment and other property for the various state departments,
offices and commissions, except when they are for legislative or military
purposes. Such rules, regulations and orders shall be of general or limited
application, and shall, so far as practicable, be uniform, shall be in con-
formity with existing laws relative to the purchase of articles and mate-
rials made by inmates of penal institutions and articles and supplies made
by the blind except that such purchase shall be made by or under the
direction of the state purchasing agent subject, however, to such approval
by the board as would be required if the purchase were made from some
other source, and shall include provision for the following:

(11) The use and disposal of the products of state institutions;"

You have directed my attention to that part of G. L. (Ter. Ed.) c. 123,
§ 7, which reads as follows:

"The department shall provide for the efficient, economical and humane
management of the state hospitals. It shall establish by-laws and regu-
lations, with suitable penalties, for the government of said state hos-
pitals. . ."

In view of the specific provisions of said sections 25A and 22 (11),
quoted herein, it is apparent that the matter of the transfer of supplies
and products from one state hospital to another within the department is
not included within the scope of that part of said section 7 set forth
above.

Very truly yours,

Robert T. Bushnell, Attorney General.



12 P.D. 12.

Old Age Assistance — Waiver of Rights — Contributions by Children.

Aug. 11, 1944.

Hon. Arthur G. Rotch, Commissioner of Public Welfare.

Dear Sir: — You have asked my opinion on two questions relative
to the administration of G. L. (Ter. Ed.) c. 118A, entitled "Adequate
assistance to certain aged citizens."

Your first question asks "whether or not a recipient (applicant) may
waive his or her rights to the fidl amount of assistance rather than have
action taken against a son or daughter to secure a reasonable contribution."

I answer this question in the affirmative.

The assistance provided by said chapter 118A is available upon the
filing of an application therefor, provided the proposed recipient possesses
certain prescribed qualifications. Unless and until an application is filed
with the proper authority assistance may not be extended under said
chapter. I find nothing in the law which would prevent the withdrawal
of an application once filed or the rejection of assistance that has been
awarded, regardless of the reason or motive for such withdrawal or rejec-
tion. Hence I advise you that an applicant for old age assistance or a
recipient thereof may at any time withdraw his application therefor or
entirely forego the assistance provided by law which has been awarded
him, and to which he would otherwise be entitled.

Your second question inquires as to whether a recipient of old age as-
sistance may waive such amount thereof for which a son or daughter is
liable in order to protect the son or daughter from prosecution for failure
to provide such amount of assistance. I answer this question in the
negative.

Section 1 of said chapter 118A provides that adequate assistance to
desei*ving citizens in need of relief and support, who meet certain enumer-
ated requirements, shall be granted under the supervision of the Depart-
ment of Public Welfare, and further provides that assistance shall be on
the basis of need, and the amount thereof shall be determined in accord-
ance with budgetary standards established by the local board of public
welfare and approved by the department. Minimum rates of assistance
for individuals living within or outside of a family group are established.

Section 2 of said chapter provides that each local board of public wel-
fare shall, for the purpose of granting adequate assistance and service
'to such aged persons, establish a division thereof to be designated as the
Bureau of (Jld Age Assistance, which in the performance of its duties is
made subject to the supervision of the Department.

Said petition further provides that in detei-mining the need for financial
assistance, said bureaus shall give consideration to the resources of the
aged person. In considering such resources section 2A sets up a schedule
to be followed relative to the financial ability of a child to support such
person. In connection with the granting of assistance, section 2 confers
authority on the local board of public welfare, "with the approval and
upon the direction of the department," to prosecute a child of the aged
person who is of sufficient ability but who neglects or refuses to contribute
to the support and maintenance of said person. It is also provided by
said section that until such prosecution is completely adjudicated and the
resource in question is actually available to the aged person or persons



P.D. 12. 13

otherwise eligible, assistance to him or them shall not be refused or reduced
by reason of such resource.

In clear language the General Court has charged the Department with
the duty of seeing to it that certain aged persons receive adequate as-
sistance and has provided that the amount of such assistance is to be
computed on the basis of need, subject to a definite minimum fixed by
law. In determining this need resources of the aged person are to be
considered and among these resources is the financial ability of a child
to contribute to the support of his parent. But the General Court has
expressly provided that the amount of assistance the aged person is en-
titled to receive shall not be reduced by reason of such resource until it
is actually available to the aged person.

Hence I advise you that it is the duty of the Bureau of Old Age Assist-
ance and of the Department to provide the assistance awarded in any
given case, reduced only by such resources as are actually available to the
aged person, and that there is no authority in law for the payment of a
lesser amount to the aged person, even with his consent. The payment
of a lesser amount would not be the granting of adequate assistance, as
those words are used in the law, and would not conform to or be con-
sistent with the obvious purpose of the law.

Very truly yours,

Robert T. Bushnell, Attorney General.



Milk Control Board — Orders of Board — Violations — Licenses.

Aug. 16, 1944.
Milk Control Board.

GextleiMen : — You state that :

"From time to time during the period 1939 to 1942, inclusive, certain
orders of the Board were after hearing revised and modified. In each
instance, either by provision in the revised and succeeding order, or by
separate order, the previous orders covering the same subject matter were
rescinded. None of these rescinding orders and no other rescinding order
at any time issued by this Board contained any specific saving clause
with reference to acts in violation of the preceding orders."

With reference to the foregoing you have requested my opinion on
two questions.

^Your first question reads:
"Mav a milk dealer now be subjected to any action under G. L. c. 94A,
§22, as'amended by St. 1943, c. 164 (of under St. 1934, c. 376, § U, as
amended by St. 1937, c. 428, § 2), on account of an act or omission made
or committed by him in violation of an order which was lawfully adopted
by the Board and in force at the time of such act or omission, but which
has since been rescinded?"

I answer your question in the affirmative.

Chapter 94A of the General Laws creates a new Milk Control Board
and provides for the regulation of the milk marketing industry in Massa-
chusetts, and was substituted for chapter 376 of the Acts of 1934, which
was an emergency measure providing for a Milk Control Board and for
the regulation of the milk marketing industry. Section 22 of said chapter



14 P.D. 12.

94 A, as amended, and section 11 of said chapter 376, as amended, referred
to in your first question, are the sections which prescribe penalties for
violation of the respective acts and of rules and regulations made there-
under.

It is clear that violation of a valid order of an administrative board, for
which a penalty is provided by the statute creating the board and giving
the board its powers, makes the offender subject to prosecution or punish-
ment even though the order has been rescinded prior to the time the
action is taken against the violator, notwithstanding the fact that the
rescinding order contains no saving clause.

In the recent case of United States v. Hark et al., 320 U. S. 531, the
Court (in reversing a decision of the District Court for the District of
Massachusetts quashing an indictment for a violation of a Maximum
Price Regulation issued pursuant to the Emergency Price Control Act,
the regulation which the appellees were charged with violating having
been revoked prior to the return of the indictment) says at page 362 :

"We hold that revocation of the regulation did not prevent indictment
and conviction for violation of its provisions at a time when it remained
in force. The reason for the common law rule that the repeal of a statute
ends the power to prosecute for prior violations is absent in the case of a
prosecution for violation of a regulation issued pursuant to an existing
statute which expresses a continuing policy, to enforce which the regula-
tion was authorized. Revocation of the regulation does not repeal the
statute; and though the regulation calls the statutory penalities into
play, the statute, not the regulation, creates the offense and imposes pun-
ishment for its violation."

So long as the statute which prescribes the penalty remains in force, or,
if in the event that it is repealed, there is a saving clause in the repealing
act, the violation can be made the basis of punitive action. (As to the
existence of provisions for imposing a penalty, see opinion of the Attorney
General to the Milk Control Board, dated March 29, 1944, Attorney
General's Report for the year ending June 30, 1944, p. 148.)

It is my opinion, therefore, that the amenability of a milk dealer to
prosecution or other authorized penalty for the violation of an order
made by your Board or its predecessor, committed while said order re-
mained in force, is not affected by the fact that the order was subsequently
rescinded by an order containing no saving clause. Such violations are
now subject to prosecution or other action by the Board whether the
orders which were violated and subsequently rescinded were adopted
under the provisions of G. L. c. 94A, or of St. 1934, c. 376.

Your second question reads:

"May the Board now decline to grant or renew a license applied for by


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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 1 of 10)