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Canada is such a board as is specified in said section 81, you would have
authority to approve its certificates if in compliance with the other provi-
sions of said section 81.

Very truly yours,

Robert T. Bushnell, Attorney General.

Insurance — Group A nnuity Policy — Dividends — Terms of Insur-
ance Contract.

Sept. 29, 1944.

Hon. Charles F. J. Harrington, Commissioner of Insurance.

Dear Sir: — You have informed me that heretofore the Division of
Insurance has required :

" each contributory group annuity policy form to* contain, among other
provisions required by law, a stipulation which in substance requires the



P.D. 12. 23

policyholder to distribute the dividends receivc^d under such contract to
the premium payers in the same proportion in which premium contribu-
tions to the contract were made . . .

A domestic mutual life insurance company ha\iu contributions or past service considerations
falling due hereunder, unless retirement annuity purchases hereunder have
been discontinued in accordance with Section 6 of Article 3 in which event
any such divisible surplus shall be paid in cash to the employer.' "

You have advised me that the contract to which you refer is one issued
to an employer through a master policy covering employees to whom
certificates showing their interest therein are issued.

With relation to the foregoing you have asked my opinion upon the
following question :

"Is the Commissioner authorized under sections 4, 132 and 192 of chap-
ter 175 to disapprove the rider form outlined above on the ground that
the proposed dividend stipulation is not equitable in that it does not
require the policyholder to disburse the dividends to the premium payers
in the same proportion in which the premium contributions to the con-
tract were made?"

Whether or not the proposed stipulation that the dividend surplus
which may be apportioned to an annuity group insurance contract shall
be applied toward the payment of the premiums due from the employer,
the holder of the master policy, without distribution by him to the various
employees, members of the group who are covered by the policy and who
also pay premiums, is fair and equitable, is a question peculiarly for the
determination of the Commissioner, involving, as it does, numerous factual
considerations.

Inasmuch as the provisions of G. L. (Ter. Ed.) c. 175, § 4, as amended,
require the Commissioner to ascertain "the equity of" a domestic insur-
ance company's "dealings with its policyholders," he has by implication
the authority to refuse to give the approval, which a company must seek
from him under G. L. (Ter. Ed.) c. 175, §§ 132 and 192, of annuity con-
tracts and riders, to those contracts and riders which he det(M-mincs to be
unfair and inequitable toward policyholders.

Various factual matters exist which must be taken into consideration
in relation to the fairness of the proposed stipulation. You have informed
me that the expense of bookkeeping and distribution involved in paying
over small proportions of an allotted portion of dividend surplus to nu-
merous and scattered premium payers under a group annuity contract is
often so great that it may al-)soi-b the employer's entire share of the divi-



24 P.D. 12.

dend or even exceed it. In forming your determination this consideration
is to be weighed by you, with other facts connected with the relation of
the parties to a group contract of this character. The Attorney General
does not pass upon questions of fact. Although the mode of distribution
provided by the proposed rider does not on its face appear to be equitable,
there may be factual considerations involved which will affect your de-
termination. A mode of distribution similar to that provided by the
proposed rider has been specifically authorized by the Legislature of New
York (N. Y. Const. L. c. 628, ^ 216, par. 2).

In answer to your question I advise you that if you determine that the
provisions of the proposed rider are unjust to employees covered by the
group annuity contract and unfairly enrich the employer, you should not
approve the rider. If, on the other hand, you find that under all the cir-
cumstances they are fair and equitable, you should give your approval.

Very truly yours,

Robert T. Bushnell, Attorney General.



Civil Service — Custodian of Contraband in Department of Public Safety — ■

Failure to Classify.

Sept. 29, 1944.

Hon. John F. Stokes, Commissioner of Public Safety.

Dear Sir: — You have asked my opinion as to whether the position
of "Custodian of Contraband and Evidence" in the Department of Public
Safety is subject to the Civil Service Law and Rules.

I am of the opinion that the position is not subject to the Civil Service
Law and Rules.

You inform me that the position in question was formerly called "Con-
traband Handler" and that in 1943 its title was changed to that of "Cus-
todian of Contraband and Evidence" and was classified, apparently under
G. L. (Ter. Ed.) c. 30, § 45, by the Division of Personnel and Standard-
ization, with the approval of the Governor and Council, in the following
manner :

Salary Range
Base Salary under c. 170,

Range. 1943.

"Custodian of Contraband and Evidence . . 1800-2280 2070-2622

Definition of Class: Duties: Under direction to collect money, goods
or other property which has been stolen, lost, abandoned or taken from
a person under arrest; to identify and act as custodian of evidence
obtained and held at department headquarters pending court trial or
other legal disposition; to assist in or be in charge of transportation of
such propert}^, and evidence and of forfeited liquor, firearms and other
confiscated dangerous weapons; to represent the Commissioner of Pub-
lic Safety in taking of warrants and disposing of forfeited articles; to
assist in the sorting and destruction of forfeited liquor and otherwise
to help in its final disposition in accordance with the law; and to per-
form related work as required."

By G. L. (Ter. Ed.) c. 22, § 6, the Commissioner of Pubhc Safety is
authorized to appoint and remove "assistants" in his department. There
is nothing in its phraseology which would appear to indicate an intention



P.D. 12. 25

on the part of the Legislature that the positions of such assistants, of
whom the "Custodian of Contraband and Evidence" is one, should be
outside the sweep of the Civil Service Law.

However, with the exception of certain positions which have been
definitely specified by the Legislature (G. L. (Ter. Ed.) c. 31, § 4), only
such positions in the pui)lic service as are brought thereunder by the rules
and regulations of the Civil Service Commission (O. L. (Ter. Ed.) c. 31, § 3)
are subject to the Civil Service Law.

Rule 4 of the Civil Service Rules provides :

"1. All persons performing duties or rendering scivice in any of the
offices and positions and classes of positions classified by statute, or in any
of the following offices and positions and clashes of positions, or performing
duties or rendering service similar to that of any such offices or positions
and classes of positions, under whatever designation, . . . are subject to
the Civil Service Law and Rules, and the selection of persons to fill such
appointive offices or positions in the government of the Commonwealth
... is subject to the Civil Service Law and Rules.

The following classes . . . apply to both the Commonwealth and the
several cities thereof: —

Class 24. Janitors, custodians, and persons employed in the care of
schools, or other public buildings."

The Civil Service Commission has set up no class of custodians of personal
property. It is obvious from the "Definition of Class" set up by the
Division of Personnel and Standardization, already quoted, that the in-
cumbent of the position under consideration is a custodian of personal
property' only and is not employed in the care of public buildings.

It is apparent from the phraseology employed in describing "Class 24"
that the "custodians" therein referred to, like the other employees men-
tioned therein, are persons having the care of schools or other public
buildings and that persons having the care of personal property onh' do
not render the same or similar service to that required of those employees
mentioned in Class 24 and are not comprehended as members of such
class.

I am informed that it has recently been the contention of the Division
of Civil Service that the position in question falls within Class 24. Such
a contention is not as a matter of law a reasonable one, in view of the
phraseology used by the makers of the rules in describing the employees
who constitute this class.

There is no other class estabHsh(>d by the rules which can reasonably be
said to include a custodian of personal property having such duties as are
set forth in the quoted "Definition of Class" set up by the Division of
Personnel and Standardization.

It follows that the position in question has not been so classified by the
Civil Service Commission in its rules as to bring it within the provisions
of the Civil Service Law.

Very truly yours,

Robert T. Bushnell, Attorney General.



26 P.D. 12.

Municipalities — Public Assistance — Amounts Payable for Hospitalization.

Oct. 13, 1944.

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

Dear Sir : — You have asked my opinion upon the five following questions
with relation to the limit which is placed by the statutes upon the amount
which cities and towns may pay for hospital services rendered recipients of
public assistance.

" 1. May a town pay more than S4.00 per day for hospitalization either
by contract or in the absence of a contract?

2. If the town does so pay, may it collect the full amount from the
town of settlement or the Commonwealth if unsettled, as the case may be,
if the patient is not settled in the town where aided?

3. If the town in any case is limited to payment of S4.00 per day for
hospital care, may the town pay an additional amount for so-called extras
such as operating room fees, laboratory fees, X-ray services, or private
room charges?

4. May the town of settlement or this department, as the case may be,
reimburse for such extras in excess of $4.00 per day?

5. If question 4 is answered in the negative, may a town pay and be
reimbursed for unusual items procured by the hospital especially for the
patient such as special nursing services, blood, blood plasma, penicillin,
oxygen, and special serums?"

Questions 1 and 3 relate solely to the authority of cities and towns to
make expenditures and are not connected with reimbursement by the
Commonwealth. You have no duties to perform with relation to such
expenditures and as these two questions are hypothetical as far as con-
cerns your office, I must respectfully decline to answer them in accordance
with the long-continued practice followed by my predecessors in office
with relation to hypothetical questions.

In answer to your second question, I advise you that a city or town may
not collect from the Commonwealth in reimbursement for payments made
by it for hospital services rendered to unsettled persons or to those settled
in another town a greater amount than S4.00 a day for such services.

G. L. (Ter. Ed.) c. 122, § 18, as amended by St. 1943, c. 476, provides
in its applicable part:

"Reasonable expenses incurred by a town under section seventeen
(which relates to the hospitalization of certain sick persons) . . . shall be
reimbursed by the commonwealth . . . There shall be allowed for the
support of a person in a hospital such amounts, not exceeding four dollars
a day, as may be provided by rules and regulations. . . ."

The context of section 18 indicates that the amount to be "allowed for
support" refers to the amount to be paid by the Commonwealth as re-
imbursement to a town for the hospital expenses of persons liable to be
maintained by the Commonwealth. It is plain from the phraseology of
the section that the Commonwealth may in no event reimburse a town for
expenses of hospitalization greater than $4.00 a day.

In answer to your fourth question, I advise you that the Common-
wealth may not reimburse a town for any charge or charges in excess of



P.D. 12. 27

$4.00 a day connected with hospitalization such as you have described in
3'our third question.

I refrain from answering; that part of question 2 and question 4 which
refers to the amount which may be collected from the town of settlement,
for the reasons set forth in my answer to questions 1 and 3.

In answer to your fifth question, I advise you that the Commonwealth
may not reimburse a town for any charge or charges in excess of $4.00 a
day for any of the items mentioned in the fifth question. The only excep-
tion to the statutory limitation of reimbursement to $4.00 a day is that
contained in the last sent(^nce of the amendment of said section 18 as set
forth in said 8t. 1943, c. 476, namely, that there shall be reimbursement for
the expense of tonsil and adenoid operations to the extent of $15.00, which
amount is payable irrespective of the expenditure per day.

\^ery truly yours,

Robert T. Bushnell, Attorneij General.



Workmen's Compensation — Self-I nsurer — Bonds.

Oct. 23, 1944.
Mrs. Emma S. Tousant, Chairman, Department of Industrial Accidents.

Dear Madam: — You have informed me that a self-insurer of work-
men's compensation, licensed under the provisions of G. L. (Ter. Ed.)
c. 152, § 25 A, notified your department that it would cease to do business
on January 17, 1944, and that your department revoked the license as of
that date. You further state that in accordance with said section 25A
(2) (b), demand was made upon the self-insurer for a deposit; that the
self-insurer failed to comply with the notice and made no demand for a
hearing to which he would have been entitled under said section 25A (3).
if he had requested it within ten days after the receipt of such notice ; and
that thereafter similar demand was made upon the surety on the bond
given by him under said section 25A (2) (6).

It would appear from the statements in the letter which you have
written me that this self-insurer qualified as such by furnishing to the
State Treasurer a corporate surety bond in the amount of $20,000 upon
the condition (as required by said section 25A (2) (6) :

"that if the license of the principal shall be revoked . . . the principal
shall upon demand fully comply with sub-paragraph (a) of this section
relative to the deposit of securities or a single premium non-cancellable
polie^^"

The self-insurer, therefore, did not qualify, as he might have done under
said subparagraph (a), "by keeping on deposit . . . such amount of securi-
ties ... as may be required by the department, said securities to be in
the form of cash, bonds, stocks or other evidences of indebtedness."
You have directed my attention to said section 25A (4) which reads:

"Such expenses as shall be determined by the department of administra-
tion and finance as necessary to carry out the provisions of this chapter
relating to self-insurance shall be assessed against all self-insurers, includ-
ing for this purpose employers who have ceased to exercise the privilege
of self-insurance but whose securities are retained on deposit in accordance
with the rules of the department. The basis of assessment shall be the



28 P.D. 12.

proportion of such expense that the total securities deposited by each
self-insurer or penal sum of bond or bonds furnished by each self-insurer
at the close of each fiscal year bears to the total deposits and bonds of all
self-insurers. All such assessments when collected shall be paid into the
state treasury."

— and you have informed me that you have determined and assessed as
against the said self-insurer who has ceased to exercise the privilege of
self-insurance the proportionate part of the total expense of carrying out
the provisions of chapter 152 relating to self-insurers.

You have asked my opinion as to whether your mode of determining
the amount to be assessed against the said self-insurer is correct as a matter
of law.

Before passing upon this question it is necessary to determine whether
this self-insurer, who has qualified under subparagraph (6) and not under
subparagraph (a) and has on deposit only a corporate surety bond and
not cash, bonds, stocks or other investments which are evidences of in-
debtedness, is within the class of employers who have ceased to exercise
the privilege of self-insurance but who, notwithstanding, are to be assessed
a proportionate part of the expenses of administration because they have
"securities . . . retained on deposit in accordance with the rules of the
department."

When this employer ceased to be a self-insurer on January 17, 1944, he
had no securities which have been retained on deposit, and he has deposited
none since, unless the corporate surety bond which he furnished in lieu of
the deposit of "securities" referred to in subparagraph (a) is to be con-
sidered as a security such as is comprehended by the word "securities" in
the phrase "securities retained on deposit" as used in said subsection (4).

I am of the opinion that such a bond is not to be considered as one of
the "securities" comprehended by the words "securities . . . retained
on deposit" in said subsection (4). Consequently, an employer who has
ceased to be a self-insurer and has on deposit nothing but a corporate
surety bond furnished by him under subparagraph (6) is not to be in-
cluded among those upon whom the expenses of administration may be
assessed after the date when he has ceased to be a self-insurer.

I am confirmed in my opinion by the fact that in said subsection (4)
when making provision for the basis of an assessment of administration
expenses, the Legislature has clearly differentiated between "securities"
deposited by self-insurers and the "bonds" such as the corporate surety
bond under consideration, furnished by self-insurers, and that a similar
differentiation appears to have been made by the Legislature throughout
the phrases of said subparagraphs (a) and (6) when the words "security"
or "securities" and the words "bond" or "bonds", referring to corporate
surety bonds, are used.

Accordingly, I advise you that in my opinion you may not assess any
part of the expenses of administration against an employer who has
ceased to be a self-insurer and has on deposit nothing but a corporate
surety bond given under the provisions of said subparagraph (b), for a
period subsequent to the revocation of his license as such self-insurer.
Very truly yours,

Robert T. Bushnell, Attorney General.



P.D. 12. . 29

Public Officers — Salaries while in Military Service.

Oct. 24, 1944.
Hon. Francis X. Hurley, Treasurer and Receiver General.

Dear Sir: — You have asked my opinion upon the following question:

"Will you kindly advise me if a register of probate who enters the

military service, his place being filled under the provisions of section IIC

of chapter 708 of the Acts of 1941 inserted by section 5 of chapter 548 of

the Acts of 1943, is entitled to receive his salary while in said service?"

I answer your question in the affirmative.

St. 1941, c. 708, § 1, as last amended by St. 1943, c. 548, 5 1, provides
in part :

" ai' ' ^"-^ person who . . . shall have tendered his resignation from
an office or position in the service of the commonwealth, or any political
subdivision thereof, or otherwise terminated such service, for'the purpose
of serving in the military or naval forces of the United States and who
does ... so serve . . . shall ... be deemed to be ... on leave of
absence; ..."

It is not provided that officers generally shall be deemed to be on leave
of absence without compensation, and, in the absence of an applicable
provision specifically taking away or reducing the salary of a public officer
on leave of absence, the ordinary principle of law that the salary attached
to a public office is incident to title to the office itself and not to the exer-
cise of the functions of the office applies. 46 C. J. p. 1015; Fitzsimmons v.
Brooklyn, 102 N. Y. 536. The fact that a public officer has not performed
the duties of his office does not deprive him of the right to receive his
salary (46 C. J. pp. 1015, 1016; Leonard v. Terre Haute, 48 Ind. App.
104) unless his failure of performance is so great as to amount to an aban-
donment of the office (see Phillips v. Boston, 150 Mass. 491, 493; At-
torney General's Report, 1941, pp. 56, 59). Any possibility of such an
abandonment by one leaving his office for the purpose of entering the
military service of the United States is precluded by the provisions of said
chapter 708, section 1, which create a presumption of a leave of absence
under such circumstances.

With respect to certain officers, the Legislature has specifically provided
by applicable provisions that their mihtary leaves of absence shall be
without full compensation. Among these are certain elected municipal
officers (St. 1941, c. 708, $ lOA, as amended), certain town officers (said
c. 708, § 11, as amended), and certain elected district officers (said c. 708,
§ 11 A, as amended).

The Legislature has also specifically provided by applicable provisions
of said chapter 708, section IIB, that elected county officers on such leaves
of absence shall be without full compensation, their salaries being reduced
by one-half while on such leave. The Legislature appears to have made a
determination in said section IIB that registers of probate are county
officers, but has by express provision excluded them from the scope of the
provisions reducing salaries. No provision applicable to them appears
in the statute whereby their military leaves of absence are established as
leaves without full salaries.



30 P.D. 12.

In its pertinent part said section IIB reads:

"In case an elected county officer, other than the register of probate, is
unable to perform the duties of his office by reason of said military or naval
service, a board . . . may . . . appoint an acting officer. . . .

. . . The salary or compensation paid to the elected official on leave of
absence shall be one half of the amount fixed for the office ..."

Section IIC of said chapter 708, as amended, provides for the appoint-
ment of a temporary register of probate to perform the duties of the
register while the latter is on a military leave of absence, sets the compensa-
tion of such temporary register as the same salary fixed for the position of
register, and makes no provision for any lessening of the compensation
of the register while the latter is on military leave of absence.

Accordingly, I advise you, as I have already indicated, that a register
of probate who leaves his office for the purpose of entering the military
services of the United States is entitled to receive his salary, which, under
the provisions of G. L. (Ter. Ed.) c. 217, § 35, is to be paid by the Common-
wealth.

Very truly yours,

Robert T. Bushnell, Attorney General.



Old Age Assistance — Husband and Wife Owning Real Estate in Common —
Security for Reimbursement of Municipality.

Oct. 24, 1944.

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

Dear Sir: — You have asked my opinion as to whether a husband and
wife owning in common real estate upon which they reside, having an
equity of $5,030, are required to execute a bond and mortgage in the
amount of S2,030, to reimburse a municipality for old age assistance to be
given them.

I am of the opinion that they are not required to execute such a bond.
G. L. (Ter. Ed.) c. 118A, § 4, provides in part:

"The ownership of an equity in vacant land from which no income is
derived or in real estate upon which an applicant actually resides shall


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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 3 of 10)