Copyright
Massachusetts. Office of the Attorney General.

Report of the attorney general for the year ending .. (1945) online

. (page 10 of 10)
Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 10 of 10)
Font size
QR-code for this ebook


connected with the preparation of bid plans and specifications for postwar
projects under properly drawn contracts would be valid.
Very truly yours,

Clarence A. Barnes, Attorney General.



78 P.D. 12.

Public Works — Entry on Private Property to Make Survey for Future

Highway Projects.

May 17, 1945.

Hon. Herman A. MacDonald, Commissioner of Public Works.

Dear Sir: — You have requested my opinion as to the right of your
department to enter upon private property to make surveys for future
highway projects without permission from the owners, and where in one
particular case the owner has refused such permission. You state that in
this particular case the taking will be made under G. L. (Ter. Ed.) c. 81,
§ 7. This section provides:

"If it is necessary to acquire land for the purposes of a state highway
outside the limits of an existing public way, the department (meaning the
Department of Public Works) may take the same by eminent domain in
behalf of the commonwealth under chapter seventy-nine. ..."

We find in the case of Willar v. Commonwealth, 297 Mass. 527, 528, some
significant language by the court:

"We think that when the Legislature gave to the department power to
take land by eminent domain 'under chapter seventy- nine ' it intended
to give to the department full and complete power to carry the necessary
proceedings through to a final termination, ..."

While this reference is to the statutory procedure, it is fair to construe
the language of this case and those referred to hereinafter as giving the
department full power of initiating the taking by way of preliminary
surveys. It is true that this act does not expressly provide that the mem-
bers of the department and their agents shall not be liable for trespass, as
has been provided in other similar statutes of the Commonwealth in
reference to forest wardens and militia, but such surveys and incidents
thereto are justified by the authority given to the department by the act.

A statute of this character grants power incidental to the carrying out
of its provisions. VIII Op. Atty. Gen. (July 19, 1927) 344, 345. Winslow
V. Gifford, 6 Gush. 327. When an act of the Legislature imposes duties
upon a public officer, it confers upon him by implication whatever authority
is necessary for the performance of such duties. I Op. Atty. Gen. (Dec.
19, 1896) 403, 404.

The department and its agents are public servants authorized by statute
to acquire land when necessary for the purposes of a state highway, and in
the discharge of these duties it may become necessary to enter temporarily
upon private lands to make surveys. If this entry is reasonable, intended
in good faith, temporary in its nature, and attended by no unnecessary
damage, it does not constitute actionable trespass. Winslow v. Gifford,

6 Gush. 327. Cavanagh v. Boston, 139 Mass. 426, 435. Brigham v. Edwards,

7 Gray 359, 363.

In Winsloiv v. Gifford the court held that there was no trespass where
under authority of a statute the commissioners entered upon the lands of
the plaintiff and made certain surveys, with the view of ascertaining the
boundaries of a tract of land devoted to public purposes, where no com-
pensation was provided for such apparent trespass. This case has been
followed and approved several times in Massachusetts and has been cited
by the United States Supreme Gourt in Montana Co. v. St. Louis Mining
and Milling Co., 152 U. S. 160, 167.



P.D. 12. 79

From other cases it seems to be well settled that general rights in prop-
erty have their limitations, in that entry upon such private property may
be made by public officers for the protection of public welfare, and that
such entry is not an exercise of the right of eminent domain nor permanent
appropriation of this property to the exclusive use of another, the entry
being made for the public welfare and subject to the limitations in Winslow
V. Gi'iford.

It seems, therefore, clear that such survey may be made if the taking of
the land is necessary for highwa}^ purposes, if the entry is reasonably neces-
sary, intended in good faith, a temporary one, and accompanied by no
unnecessary damage.

Very truly yours,

Clarence A. Barnes, Attorney General.



State College — Tuition — N on-Resident Students — Trustees.

June 14, 1945.
]\Ir. Robert D. Hawley, Treasurer, Massachusetts State College.

Dear Sir: — You have asked my opinion as to the legality of the
tuition charges of $110 per semester made by the Massachusetts State
College by vote of its trustees for students who are not residents of Mas-
sachusetts.

In my opinion these charges are legal and valid. The charges were put
into effect by the following vote of the Board of Trustees on January 19,
1933:

"Voted: That tuition for all students, residents of Massachusetts, be
increased to $100 per year and the tuition for students who are not resi-
dents of Massachusetts be increased to $220 per year and that these tuition
charges include present student fees: laboratory fees, $12; health fee,
$4.50; matriculation fee, $5, which are now separately charged."

The trustees of the college have been vested by the Legislature with the
powers of management, administration and government of the college,
and the authority to determine and regulate instruction therein. G. L.
(Ter. Ed.) c. 75, §§ 9-11.

It has been held by one of my predecessors in office, with whose opinion
I agree, that the trustees may establish such rates of tuition as they may
deem reasonably necessary. II Op. Atty. Gen. (1899) 84.

In the recent case of Lynch v. Conumssioner of Education, 317 Mass. 73,
the Supreme Judicial Court has held that when power of general manage-
ment of a college is conferred by the Legislature on a public authority, it
carries with it a grant of power to such an authority to establish reasonable
tuition fees.

The Board of Trustees of the Massachusetts State College is such a
public authority, serving in the Department of Education, its members
being persons holding certain designated offices in the service of the Com-
monwealth, acting ex officio as trustees, and persons appointed as trustees
by the Governor.

Very truly yours,

Clarence A. Barnes, Attorney General.



80 P.D. 12.

Towns — Members of Fire Department — Payments for Death —
G. L. {Ter. Ed.) c. 48, § 83.

June 21, 1945.
Hon. Francis X. Lang, Comptroller.

Dear Sir: — You have informed that the Town of Hingham has sub-
mitted a claim under G. L. (Ter. Ed.) c. 48, § 83, for the payment of .|2,500
to the use of persons mentioned in said § 83 as a result of the death of a
fireman of said town, who, I assume, had served for more than a year
preceding the first of May prior to his death.

You have advised me of certain material facts and, in your first question,
have asked my opinion, based upon them, as to whether as a matter of
law the Commonwealth is liable for such payment under said § 83.

I answer this question in the negative.

G. L. (Ter. Ed.) c. 48, § 83, in its pertinent parts provides that if a
fireman dies as a result of injuries received in the performance of his duties,
upon certification of the relevant facts to the Comptroller, the latter shall
certify for payment to the executor or administrator of the deceased $2,500
for the use of certain persons connected with the deceased, in a manner
designated in the section. It is, however, specifically provided in the last
sentence of the section as follows :

"No payments shall be made under this section on account of the death
of a member of the fire department of a city or town in respect to which
compensation is payable under section eighty-nine of chapter thirty-two."

Section 89 of chapter 32 provides in its applicable portions that if a
"member" of a "fire force" dies from injuries received in the performance
of his duties, the town which employed him shall pay certain specified an-
nuities to designated persons connected with the deceased, and that the
total amount of all annuities shall not, except in instances not here mate-
rial, exceed the annual rate of compensation received by such person at
his death. Provision is also specifically made for payment by the town
of annuities to call and reserve firemen.

It appears from the facts of which you have advised me that the de-
ceased, though a "volunteer" fireman, was a member of the regular "fire
force" or fire department of Hingham.

The nature of the employment and duties of a "volunteer" fireman as
they appear from the facts of which you have informed me in connection
with the Hingham fire department and as they exist in relation to some
other fire departments of rather antiquated kinds in various towns, differ-
entiate the status of the "volunteer" firemen from that of a "call fireman"
or of a reserve fireman.

The regular fire force or fire department of Hingham appears from said
facts to be made up of two types of firemen, one of which is called "perma-
nent" and receives a substantial annual compensation; the other is called
"volunteer" and those included therein are governed by the terms of
G. L. (Ter. Ed.) c. 48, § 38, which provide that:

"Enginemen or members of the fire department who have served for
one year preceding May first in any year, shall receive from the town a
sum equal to the poll taxes paid by or for them and such further com-
pensation as the town determines."



P.D. 12. 81

This "further compensation" consists in the Town of Hinghani of pay
at a per-hour rate for all time spent at wood fires and for work at a building
fire after two hours of attendance thereat.

That the payment by the town to a fireman of a sum equal to the
amount paid for or by him by way of poll tax is "compensation" for his
services appears to be settled by the language employed by the Supreme
Judicial Court in Greenough v. Wakefield, 127 Mass. 275, 277, where it
considered the phraseology of Gen. St. c. 24, § 18, from which said G. L.
(Ter. Ed.) c. 48, § 38, is derived. See also II Op. Atty. Gen. 253.

It follows, then, that the deceased, as a member of the fire department
of Hingham, receiving such compensation annually from the town, was one
on account of whose death compensation is payable to persons designated
by the town in said section 89.

It is true that since the amount of the deceased's annual compensation
as a fireman, being based upon the poll tax paid, is very small, and as it
may not be exceeded by the annuities payable to the beneficiaries, such
annuities would appear to be totally inadequate. The remedy for such a
situation lies with the Legislature. Your second question is hypothetical
in character and in relation to the subject matter of your letter concerning
the death of said fireman, in view of my reply to your first question, requires
no answer.

Very truly yours,

Clarence A. Barnes, Attorney General.



82 P.D, 12.

INDEX TO OPINIONS



PAGE

Architects; registration; "residence"; "prior"; St. 1941, c. 696, § 3 . . 46

Banks ; credit unions ; acquisition of shares of one credit union by another . 72

Blind, Division of the; vocational rehabihtation ; federal funds ... 62

Civil service; authority of Director; seniority of employees ... 15
Custodian of Contraband in Department of Public Safety; failure to

classify ........... 24

Custodian of municipal building; "officer"; "employee" . . ' 54

Fire Department of West Springfield; call firemen; classified service . 32
Preference of veterans in promotional examinations . . . .53

Promotions; G. L. (Ter. Ed.) c. 31, § 15 56

Promotions in clerical service of municipal fire department; G. L. (Ter. Ed.)

c. 31, § 15 or § 20 35

Supervising boiler inspector in Department of Public Safety not classified . 17
Conservation; shellfish; permits; municipal leases; non-residents; Director

of Division of Marine Fisheries ....... 43

Constitutional law; alcoholic beverages; sales; aliens; treaty with Great

Britain ........... 59

Incompatibilit}^ of offices of representative and member of Governor's

Council ........... 70'

Rules and regulations of state departments; encroachment of Legislature

upon authority of the e.xecutive branch of the government . . 63
Contracts for postAvar projects; St. 1943, c. 370, § 10 . . . .77

Emergency Public Works Commission; postwar projects; Port of Boston . 36
Fisheries and Game, Division of; authority of officers to enforce game laws

on public lands, including area of Quabbin Reservoir ... 68

Food ; sale of canned lobster meat ; label ...... 57

Insurance; classification of fire risks by domestic fire insurance companies;

contracts made outside the Commonwealth ..... 49

Domestic stock liability insurance company; increase of capital; Com-
missioner's approval . • . . . . .64

Fraternal benefit society ; annual meeting; officers holding over; authority

of Commissioner .......... 66

Fraternal benefit society; by-laws; delegation of authority; election of

officers ........... 57

Group annuity contracts; approval; options; particular provisions . . 37

Group annuity policy: dividends; terms of insurance contract . . 22
Mental Health, Department of; transfer of surplus supplies from one state

hospital to another unauthorized . . . . .10

Metropolitan District Commission; lack of authority to transfer land to a

state department ......... 76

Transfer of supervision of Mystic Lakes; lack of authority . . .31

Military leave of absence ; resignation; United States Public Health service . 61
Milk Control Board ; orders of board ; violations; licenses . . . .13^

Public announcement of prices to be paid by individual milk dealers . .19*

Municipalities; public assistance; amounts payable for hospitalization . 26
Old age assistance ; husband and wife owning real estate in common ; security

for reimbursement of mimicipality ...... 30

Husband and wife; tenancies ........ 47

Waiver of rights; contributions by children ...... 12

Public Health, Department of; transportation of shellfish; certificates of

foreign board . . . . . . . . . . 22 ^

Public officers; salaries while in military service ..... 29«|



P.J>^12. 83

PAGE

Public Safety; inspection of places of assembly; regulations; G. L. (Ter.

Ed.) c. 143, § 3B . 33

Public works, entry on private property to make survey for future highway

projects . . . . . . . .78

Settlement; member of United States military forces; Executive Order No.

32; G. L. (Ter. Ed.) c. 116, § 1 75

State college; tuition; non-resident students; trustees .... 79
Towns; members of fire department; payment for death; G. L. (Ter. Ed.)

c. 48, § S3 80

^^^alden Pond State Reservation; powers of commission; lack of authority

to restrict ........... 10

Warehouseman; "public warehouseman"'; license ..... 73

War Emergency Fund ; transfer of funds; authority of governor . . .17

Workmen's compensation; Director of Division of the Bhnd; "Officer";

"Employee" .......... 51

Self-Insurance; reinsurance; catastrophe; ser\ace company ... 41
Self -insurer; bonds .......... 27



1





1 2 3 4 5 6 7 8 10

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