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any milk dealer or revoke a license of any milk dealer pursuant to the
provisions of paragraph (12) or (13) of section 6 of said chapter 94 A on
account of an act or omission made or committed by him in violation of
an order which was lawfully adopted by this Board and in full force at
the time of such act or omission, but which has since been rescinded? "

I answer your question in the affirmative.

G. L. c. 94A, § 6, provides that the Board may decline to grant or renew
a license or may suspend or revoke a license already granted when it is
satisfied of the existence of any of the following reasons:



P.D. 12. 15

"(12) That hp knowingly purchased, received, processed, sold or other-
wise handled milk within the commonwealth in violation of any of the ap-
plicable laws, or of the rules, regulations and requirements of the board; or

(13) That he has violated any provision of this chapter or of similar
provisions of earlier laws, or of an order, rule or regulation of the board
made under authority thereof or of section nine of chajiter twenty."

The Board may use as the basis for action against a dealer under either
of these paragraphs the violation of an order lawfully adopted by the
Board and in force at the time of the act or omission made or committed
by him. The Board may proceed under these paragraphs although action
is not taken until after the order has been rescinded and notwithstanding
the absence of a saving clause in the rescinding provision.

Very truly yours,

Robert T. Bushnell, Attorney General.



Civil Service — Authority of Director — Seniority of Employees.

Aug. 23, 1944.

Hon. William H. Bixby, Chairman, Civil Service Commission.

Dear Sir: — You have informed me that it has been the custom of the
Division of Civil Service to keep a record of the seniority dates of em-
ployees in the various departments under the Civil Service Law and you
have set forth the manner in which these dates are computed.

You have informed me further that in the city of Springfield it was
necessary to reduce the number of clerks in the Department of Public
Welfare from five to four in order to live within the budget of that depart-
ment. The Board of Public Welfare inquired of the Director of Civil
Service as to the employee who was junior in point of seniority according
to the computation of the Director of Civil Service, and upon receipt of
this information demoted that employee. The employee so demoted has
appealed to the Civil Service Commission.

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

Your first question reads:

"Has the director the authority to compute seniority dates of employ-
ees in the classified public service which will bind appointing officers in
determining the order of layoffs or demotions or reinstatements after lay-
offs or demotions, under the provisions of G. L. c. 31, § 46G?"

I answer this question in the negative.
G. L. (Ter. Ed.) c. 31, § 46G, provides:

"If the separation from service of persons in the classified service be-
comes necessary through no fault or delinquency of their own, they shall
be separated from the service, and reinstated therein in the same position
or in a position in the same class and grade as that formerly held by them,
according to their seniority in the service so that the oldest employees in
point of service shall be retained the longest, and reinstated first and
before any reinstatement under section forty-six C or the certification of
new names. Nothing in this section shall prevent reinstatements under



16 P.D. 12.

section forty-six D or impair the preference provided for disabled veter-
ans by section twenty- three."

I find nothing in the above-quoted section, in chapter 31 generally, or
in the rules and regulations made thereunder, which confers upon the
Director the authority to determine the seniority of persons in the classified
service in case of their separation from the service through no fault or
delinquency of their own, which determination is made binding upon
appointing officers. Such computation may be made by the appointing
officer himself.

it is to be noted that section 38 of said chapter 31 provides:

"If, in the opinion of the director, a person is appointed or employed
in the classified pubhc service in violation of any provision of this chapter
or of any rule or regulation made thereunder, the commission or the
director shall, after notice in writing mailed to the appointing or em-
ploying officer, department, board or commission, and to such person,
notify in writing the treasurer, auditor or other officer whose duty it is
to pay the salary or compensation of such person, or to authorize the
drawing, signing or issuing of any warrant therefor; and the payment of
any salary or compensation to such person shall cease at the expiration
of one week after the mailing of the notice to such treasurer, auditor or
other officer, and no such officer shall pay any salary or compensation to
such person, or draw, sign or issue, or authorize the drawing, signing or
issuing, of any warrant therefor, until the legality of such appointment
or employment is duly established."

Rule 23 of the Civil Service Rules, entitled "Reappointment and Re-
instatement", section 2, authorizes the "Commissioner", now called the
"Director", to place on a "Special List" the name of any person who is
separated from the service without fault or delinquency on his part, if the
applicant so requests in writing, and his name shall remain on such " Special
List" for a period of two years from the date of such separation. "There-
after, on requisition to fill any position, which in the judgment of the
Commissioner can be filled from such Special List, the Commissioner,
before certifying from the regular eligible list, may certify from the Special
List the names of persons then standing thereon in the order of the dates
of their original appointment, and appointment shall be made from the
names so certified."

The foregoing provisions of law implicitly authorize the Director to
make computations of the seniority date of employees who are subject
to the Civil Service Law and the rules and regulations made thereunder,
for the purpose of discharging the duties incumbent upon him, but I find
no authority for the proposition that computation so made shall be binding
upon appointing officers in determining the order of layoffs or demotions
or reinstatements after layoffs or demotions.

The purpose of the foregoing provisions of law is that "supervision of
reinstatement of those separated from the public service" may be main-
tained. Police Commissioner of the City of Boston v. Commissioner of Civil
Service, 278 Mass. 507, at 509.

Your second question reads :

"If the director has authority to make such a binding computation and
no particular plan is required by law, is the manner in which the director



IM). 12. 17

computes seniority for the purpose above referred to subject to review
by the Civil Service Commission?"

Mj'^ answer to your first question makes it unnecessary to answer your
second question.

Very truly yours,

Robert T. Bushxell, Attorney General.



Civil Service — Supervising Boiler Inspector in Department of Public

Safety not Classified.

Aug. 29, 1944.

Hon. Thomas J. Greehan, Director of Civil Service.

Dear Sir: — You have asked my opinion as to whether or not the
designation and assignment of a Boiler Inspector as Supenising Boiler
Inspector by the Commissioner of Public Safety is subject to the provisions
of G. L. (Ter. Ed.) c. 31, and the Rules and Regulations made thereunder.

I answer your question in the negative.

In an opinion of the then Attorney General to the Director of Civil
Service on October 14, 1943 (Attorney General's Report for the year ending
June 30, 1944, p. 89), it was decided that the Commissioner of Pubhc
Safet}^ could designate and assign permanently to the position of Super-
visor of the State Police Detective Bureau one of the State Police Detective
Inspectors without the approval of the Division of Civil Service. The
considerations set forth in that opinion govern the present inquiry.

The position of Supervising Boiler Inspector has not been specifically
placed under the Civil Service Law either by legislative enactment or by
rule of the Division of Civil Service. It is not included within the estab-
lished classifications of Rule 4 of the Civil Service Rules. That rule con-
tains references to "boiler inspectors" and "inspectors." The position of
Supervising Boiler Inspector, like the position of Supervisor of the State
Police Detective Bureau, is one of supervisory duties and powers, as
its name implies, and hence is different from that of "boiler inspector" or
"inspector." The fact that the salaries of the two positions of Boiler
Inspector and Supervising Boiler Inspector are different does not, in and of
itself and as a matter of law, make a change of position from the one to the
other a promotion within the meaning of said chapter 31 or the Rules and
Regulations made thereunder.

As stated in the opinion of October 14, 1943, above referred to, the Civil
Service Commission may, if it feels that the public interest so requires,
amend its rules in accordance with law to include this position within
those subject to the Civil Service Law and Rules.
Very truly yours,

Robert T. Bushnell, Attorney General.

War Emergency Fund — Transfer of Funds — A uthority of Governor.

Aug. 29, 1944.

Hon. Walter S. Morgan, Comptroller.

Dear Sir: — You request my opinion on three questions relative to
the "limitation on expenditures from the War Emergency Fund as set



18 P.D. 12.

forth in St. 1943, c. 370, § 10." You have informed me concerning the
practical operation of this fund, and state that:

"Upon request and recommendation as provided in the statute, the
Governor and Council have made the funds available to the spending
agencies (a) by transfer to an existing appropriation or (b) by authoriza-
tion in all other cases. When such transfers and authorizations have been
made by the Governor and Council they are recorded in appropriate
accounts on the Commonwealth's books to show the funds are available
to the amount and for the purpose designated."

Your first question reads :

"In your opinion can the Governor and Council legally make such
transfers and authorizations after January 3, 1945?"

I answer this question in the negative.
Section 10 of chapter 370 reads:

"To provide for divers emergency expenditures which may be neces-
sary to meet any emergency which may arise by reason of the exigencies
of the existing state of war and to meet deficiencies in existing appropria-
tions, there may be expended under the direction of the governor sums
not exceeding seven million dollars in the aggregate, and for said pur-
poses there is hereby appropriated from the General Fund the sum of two
million dollars and from the Highway Fund the sum of two million dollars
which amounts shall be available for expenditure on and after July first
in the current year, and said amounts, together with any unexpended
balance remaining from the funds previously provided under chapter
eighteen of the acts of nineteen hundred and forty-two, are to be credited
on the books of the commonwealth to a fund to be known as the War
Emergency Fund. • All expenditures hereinbefore referred to shall be sub-
ject to the approval of the council. Requests for any such expenditures
shall be referred by the governor to the commission on administration
and finance, which, after investigation of the need of such expenditure,
shall forthwith submit to the governor its written recommendation of the
amount of funds required, together with pertinent facts relative thereto.
All expenditures authorized .under this section and the employment of
persons whose positions have been created by reason of monej^ made
available by this section shall cease not later than thirty days after the
governor, with the advice and consent of the council, shall have pro-
claimed that the existing emergency has ended, and no new obligations
may be authorized after January third, nineteen hundred and forty-five."

The authority of the Governor to expend sums from the War Emer-
gency Fund, subject to the approval of the Council, whether by transfer
to an existing appropriation or by authorization, is limited by express
provision in said chapter 370 that —

". . .no new obligations may be authorized after January third, nine-
teen hundred and forty-five."

Each request for expenditure relates to a "new obligation," whether
or not the subject matter of the request remains the same as that set
forth in a previous request. Therefore, the limitation as above set forth
may be interpreted as though it read :



IM). 12. 19

". . .no obligations may be authorized after January third, nineteen
hundred and forty-five."

Read in this manner, it is clear that the intent of the Legislature was
to empower the Governor and Council to make authorizations and trans-
fers for expenditures from the War Emergency Fund up to and including
January 3, 1945, but not thereafter.

Your second question reads :

"In the cases where such transfers and authorizations shall have been
made up to January 3, 1945, will the funds so made available be available
for expenditure, subject to allotment, for the same purposes as before until
such funds are exhausted?"

I answer this question in the affirmative, subject to the limitation here-
inafter set forth. It is apparent from the entire context of chapter 370
that th(^ Legislature intended that funds previously allocated to a spend-
ing agency should in the interest of the i^ublic welfare be available after
January 3, 1945, as well as prior thereto. The time within which the
allocated funds must be expended is limited by two provisions of law:

(a) The act itself provides that the Governor, with the advice and con-
sent of the Council, may proclaim that the existing emergency has ended,
and all expenditures authorized must cease not later than thirty days
thereafter; and

(b) G. L. (Ter. Ed.) c. 29, § 14, in its pertinent part, provides:

"An appropriation for any purpose other than ordinary maintenance,
. . . shall not be available for more than two years after the effective
date of the appropriation act ... In either case payments to fulfill con-
tracts and other obligations entered into within the said two years may
be made thereafter."

Funds allocated to spending agencies whether by transfer to an existing
appropriation or by authorization may be expended not later than two
years subsequent to June 1, 1943, the effective date of the act setting up
the War Emergency Fund, except that payments to fulfill contracts and
other obligations entered into within the said two years may be made
thereafter.

Your third question reads :

"Or beginning January 3, 1945, will such funds be restricted to the pay-
ment of liabilities previously' incurred, or in any other way?"

I answer this question in the negative for the reasons set forth in my
answer to your second question.

Very truly yours,

Robert T. Bushnell, Attorney General.



Milk Control Board — Public Announcement of Prices to be Paid by
Individual Milk Dealers.

Sept. 18, 1944.

Mr. Louis A. Webster, Acting Chairman, Milk Control Board.

Dear Sir: — You have informed me concerning the three existing
price plans established by the Milk Control Board to regulate the purchase



^'J P.D. 12.

of milk by milk dealers from producers: the Flat Price Plan, the Com-
posite Price Plan, and the Base Rating Plan. You have explained that
under either of the latter two plans as now administered each dealer
calculates his own composite or base and excess price, subject to later cor-
rection by the Milk Control Board, so that he may, after payment to his
producers in accordance with his own calculations, be called upon to
make further supplemental payments if the Board finds his computations
to have been too favorable to himself.

You have informed me further that, "In many milk marketing areas
administered by other milk control agencies . . . each dealer using a
composite or base rating plan is required promptly after the close of each
delivery period to report to the controlling agency his receipts and sales
of milk for the period. On the basis of such reports the agency, prior to
the date when payment is due, computes and makes public announcement
of the composite or base and excess prices the dealer should pay for such
period. The Lowell-Lawrence market is at present so administered under
joint Federal-State control.

"It has been repeatedly urged upon this Board by producer organiza-
tions and by some dealers that the principal secondary markets of Massa-
chusetts should be placed on the same basis by order of the board, and
each dealer's composite or base and excess prices be calculated by the
Director of Milk Control and announced in advance of the date on which
payment is due."

With reference to the foregoing, you have asked my opinion upon the
following questions:

If the Division of Milk Control were to make periodic public announce-
ments, as to any marketing area, of the names of all dealers purchasing
milk for distribution in such area, adding "after the name of each dealer
who is purchasing milk either on the flat or on the composite price plan,
the flat or composite price per hundredweight which such dealer should
pay for all milk received from producers during such period, and after
the name of each dealer who is purchasing milk on a base rating plan, the
base and excess prices per hundredweight which such dealer should pay
respectively for all base and all excess milk received by him from pro-
ducers during such period, "

(1) Would such an announcement be violative of G. L. (Ter. Ed.)
c. 94A, § 13 (rf), as to dealers purchasing milk on the composite price plan,
having in mind that the publication of such a dealer's composite -price
would disclose the percentages of his receipts of milk disposed of for Class I
use (milk to be distributed for beverage purposes) and for Class II use
(milk disposed of for the manufacture of dairy products)?

(2) Would such an announcement be violative of said section 13 {d)
as to dealers purchasing milk on the base rating plan, having in mind
that the publication of such a dealer's base and excess price would disclose
(a) whether his Class I sales were greater or less than his "base milk
receipts" (the "base" being an arbitrary daily quota assigned to each
producer, usually equal to that percentage of his average daily delivery
of milk during the prior "base period" which was, during such period,
sold by the dealer as Class I), (6) if they were greater, the percentage of
excess milk (milk delivered by the producer in excess of his daily base)
sold as Class I, and the percentage sold as Class II, and (c) if they were



I

P.D. 12. 21

less, the percentage of his receipts of base milk sold as Class I and the
percentage sold as Class 11?

I answer your question in the affirmative.

G. L. (Ter. Ed.) c. 94A, § 13 (d), provides that "The information ob-
tained by an}' inspection authorized or reports required by this chapter
or by similar provisions of earlier law shall be treated as confidential and
shall not be disclosed by any person except as may be required in the
propcn- administration of this chapter; provided, that the board may use
such information together with other similar information, for compilation
and publication of statistics of the milk industry in this commonwealth.
Such statistics shall not contain the name of, or disclose, by inference or
otherwise, information obtained from the books and records of any milk
dealer."

Your letter states that the basis for any such public announcement as
you describe would be "either through inspection authorized by said
chapttn- 94A ... or through a report required ... by order of the board
issued under said chapter. " It is, of course, obvious that such an announce-
ment would effect a disclosure of the information so obtained. Unless,
then, the publication of such information can be said to be "required
in the proper administration of this chapter," within the clause of the
statute excepting such matters from its operation, said section 13 (d)
prevents the execution of the plan described in your letter.

The statutory prohibition against disclosure of information exists or
does not exist, in any particular case, quite apart from the question of
the cpiantum of the harm to any individual resulting from the disclosure:
hence, it is immaterial whether a dealer operates on the composite price
plan or upon the base-rating plan. The publication of any information
concerning him, obtained by inspection or report, when not "required in
the proper administration of this chapter," falls within the ban of the
statute.

It is not apparent from the substance of your letter that the practice
proposed by you is "required in the proper administration of this chapter."
While there may be little question that the Board's official predetermina-
tion of prices would be most salutary and little argument that notification
of such determination should be given to each dealer prior to the date of
payment, it does not appear that the public announcement of prices to be
paid by each named dealer in each marketing area should be necessary
to effectuate this result. Nothing in the statute, of course, would prevent
the Board from notifying each dealer of the results of its computation of
prices to be paid by him.

Again, the plan for price announcements outlined in your letter calls
for the periodic publication of the names of individual dealers as well as
of information obtained from their books and records. Since the proposed
announcements would be, in a very real sense, "statistics of the milk
industry," compiled and published by the Board, the second sentence of
said section 13 (rf) affords a complete and affirmative answer to your first
two questions.

The answers to the foregoing questions being in the affirmative, it
becomes unnecessary to consider your third question relative to the
propriety of publishing the proposed announcement in the event that
either of the foregoing questions be answered in the negative.
•Very truly yours,

Robert T. Bushnell, Attorney General.



22 P.D. 12.

Department of Public Health — Transportation of Shellfish — Certificate of

Foreign Board.

Sept. 19, 1944.

Dr. Vlado a. Getting, Commissioner of Public Health.

Dear Sir: — You have asked my opinion as to whether you may ap-
prove certificates for the transportatio^i into the Commonwealth of shell-
fish from Canada, for consumption as food, in a form which I assume
complies with that required as to the purity of shellfish by G. L. (Ter.
Ed.) c. 130, § 81, as amended, issued by the Department of Pensions and
National Health of Canada.

Said section 81 forbids the transportation into the Commonwealth of
shellfish, unless there is on file with your department a certificate approved
b}^ it from a state board of health or other board or officer having like powers
of the state, country or province in the areas outside Massachusetts from
which the shellfish were dug or taken.

Section 81 also provides with regard to such certificate that —

"No such certificate shall be approved by the department of pubHc health
which does not meet the provisions of the laws, rules, regulations and re-
quirements of the United States as to interstate commerce in shellfish."

You inform me that the United States authorities advise you that they
have no authority to submit an "approved list" so far as Canadian cer-
tificates are concerned.

The United States authorities under the Federal Food and Drug Act,
U. S. C. Aj Title 21, as amended, have authority to require the withdrawal
from interstate commerce of imported articles of food which are likely to
be injurious to the public health. If, as appears from the communications
which you have submitted to me, the United States authorities permit the
importation and shipment of shellfish from Canada, it would seem that a
certificate from a Canadian authority having the powers of a board of
health for Canada certifying the facts required by said section 81 with
relation to the purity of such shellfish could not be said "not" to "meet
the provisions of the laws, rules, regulations and requirements of the
United States as to interstate commerce in shellfish."

Accordingly, if the Department of Pensions and National Health of


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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 2 of 10)