Massachusetts. Office of the Attorney General.

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

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not disqualify him from receiving assistance under this chapter; provided,
that if such equity, . . . exceeds an average of three thousand dollars
during the five years immediately preceding his application, the board of
public welfare of the town rendering such assistance, or the bureau of old
age assistance . . . shall . . . require such applicant to execute a bond
in a penal sum equal to the amount of the equity in excess of three thousand
dollars, . . . conditioned on repayment ... of all amounts of such
assistance, without interest, such bond to be secured by mortgage upon
the applicant's real estate. ..."

It cannot reasonably be said that the equity owned by one of the tenants
in common in such a parcel of real estate exceeds $3,000 because the total
equity therein is greater than such sum. The words "the ownership of an
equity ... in real estate upon which an applicant actually resides shall
not disqualify him" refer to equitable rights which enrich a particular
applicant and as to these there is an exemption in his favor in the amount

P.D. 12. 31

of $3,000. A tenant in common cannot bo said to be enriched by that
.share of the total equitable rights in a piece of real estate which inure to
the other tenant.

If the Legislature had intended to provide that in the case of tenants in
common or in the case of such ownership by husband and wife the exemp-
tion of equitable rights to the extent of $3,000 should not apply it would
doubtless have used language appropriately expressing an exception to
the general rule set forth in said section 4.

It follows that a city which has furnished old age assistance to both a
husband and wife owning real estate, upon which they reside, having a
value of $5,030 above the amount of a mortgage, without taking a mortgage
bond from them, is entitled to reimbursement for the assistance so fur-
nished under the provisions of section 8 of said chapter 118 A.
Very truly yours,

Robert T. Bushnell, Attorney General.

Metropolitan District Commission — Transjer of Supervision of
Mystic Lakes — Lack of Authority.

Nov. 8, 1944.

Hon. Eugene C. Hultman, Commissioner, Metropolitan District Comission.

Dear Sir : — You have asked me whether your Commission may trans-
fer "the supervision and maintenance of the Mystic Lakes in Arlington
and Winchester from the Water Division to the Parks Division."

You state that these lakes were originally a source of water supply. I
assume from what you further state that although not used for such pur-
pose for many years they could again be so used after reconstruction.

I am informed by your department that these lakes were acquired by
the old Metropolitan Water Board, of which your department is the
successor, under the provisions of St. 1895, c. 488, which authorized the
acquisition of waters for the purpose of water supply.

It is a general principle of law that real property "appropriated to one
public use cannot be diverted to another inconsistent public use without
plain and explicit legislation to that end." Higginson v. Treasurer, d'C. of
Boston, 212 Mass. 583, 591.

It would seem, therefore, that these lakes, acquired for water supply
purposes, cannot now by a departmental order or ruling be converted into
parks or portions of parks as such.

Heretofore they have been, you advise me, under the control of the
Water Division established in your department. The precise scope of the
authority of the divisions in your department is not defined by the statutes.

If these lakes can be maintained as potential sources of water supply
when supervised and maintained by the Parks Division in your department
as effectually as when supervised and maintained by the A\'ater Division,
and there are appropriations available to the Parks Division for such pur-
pose, there would appear to be no objection as a matter of law to the
exercise of such supervision and maintenance of the lakes as a potential
source of w^ater supply by the Parks Division.
\'ery truly yours,

Robert T. Bushnell, Attorney General

32 P.D. 12.

Civil Service — Fire Department of West Springfield — Call Firemen —

Classified Service.

Nov. 8, 1944.
Hon. Thomas J. Greehan. Director of Civil Service.

Dear Sir: — You have informed me that in 1917 the Town of West
Springfield accepted the provisions of Spec. St. 1916, c. 350, entitled
''An Act to extend the provisions of the civil service laws to the members
of the fire department of the town of West Springfield"; that at the time
of such acceptance there were no call firemen in the service of the town,
and you desire my opinion as to whether by force of such acceptance call
firemen employed by the town thereafter come within the provisions of the
Civil Service Law.

I am of the opinion that such call firemen are within the sweep of the
Civil Service Law.

In 1916, when the Legislature enacted this special act applicable only
to West Springfield, the Revised Laws were in effect, and chapter 19, section
37, contained general provisions substantially corresponding to those now
embodied in G. L. (Ter. Ed.) c. 31, § 48, that in a town which accepted
the provisions of the existing Civil Service Law relating to the fire forces
of cities except Boston such provisions should "apply to all members of
the regular or permanent . . . fire forces, or to the call fire force, or to
either of said forces. ..."

By acting under said section 37, a town could determine for itself whether
or not call firemen should be included within the protection of Civil Service
or whether such protection should be limited to members of the regular
and permanent fire force only. It is with relation to this mode of accept-
tance that G. L. (Ter. Ed.) c. 31, § 48, provides that:

"... a town which has accepted this section or the corresponding pro-
visions of earlier laws as to regular firemen may afterward accept it as to
call firemen. ..."

The Legislature, however, by enacting said special act of 1916 provided
for West Springfield a mode of acceptance of the Civil Service Law which
did not permit an inclusion of regular and permanent firemen and an ex-
clusion of call firemen. By its terms all members of the town fire depart-
ment were to be brought under Civil Service if the voters accepted the act.

The first section of the said special act reads:

"The provisions of chapter nineteen of the Revised Laws (the Civil
Service Law), and all acts in amendment thereof and in addition thereto,
are hereby made applicable to all present and future members of the fire
department of the town of West Springfield."

No provision for the inclusion or exclusion from the acceptance of the
special act with regard to any branch or division, regular or call, of the
firemen of West Springfield was contained in the special act. The special
act unlike said section 37 of chapter 19 of the Revised Laws afforded the
voters of West Springfield, if they accepted it, no opportunity to express
an intent to exclude either regular or call firemen from the protection of
Civil Service.

In view of the existence of the general provisions of said section 37 it is
apparent that unless the Legislature intended that acceptance of the
special act should draw into the Civil Service both regular and call fire-


r.D. 12. 33

men alike there would have been no occasion for its enactment, and the
measure would have been of no practical efl'ect, as its terms otherwise
make no material variation from those of said section 37.

The words "fire department" comprehend at least the fire-fighting
forces of a town (see Elliott v. Fire Commissioner of Boston, 245 Mass.
330, 332). Call firemen are a part of such forces. In certain statutes the
phraseology indicates a legislative determination that call firemen are
members of the fire departments of cities (G. L. (Ter. Ed.) c. 32, §§ 80, 82)
and of towns (G. L. (Ter. Ed.) c. 32, § 85A; c. 48, § 42). In an opinion of
the Attorney General to the Director of Civil Service of December 31,
1941 (Attorney General's Report, 1942, p. 49), it was stated:

"Call firemen are a part of the 'fire forces' of cities and towns which
emplo}- them."

To construe the words "fire department" as used by the Legislature in the
special act under consideration as not embracing both the regular and
call firemen would be to give them an unusual meaning and, moreover,
would result in an interpretation of the special statute which, for reasons
that I have suggested, would render it an unnecessary duplication of
existing legislation, barren of any accomplishment.

As was stated by Chief Justice Rugg in Flood v. Hodges, 231 Mass.
252, 257: ^

"A legislative act ought to be interpreted, whenever permitted by its
words, so as to make it effective toward a substantial end and not devoid
of vitality. Barrenness of accomplishment cannot be imputed to the
legislative department of government."

An intention to pass an ineffective statute should not be imputed to the
Legislature. Boston Elevated Railway Co. v. Coynmonwealth, 310 Mass.
528, 548; Maclnnis v. Morrissey, 298 Mass. 505, 509; B. (k A. E^R. v.
Boston, 275 Mass. 133, 135.

It follows that by the acceptance of the special act of 1916 the Town of
West Springfield brought all those who were or should thereafter become
call firemen within the provisions of the Civil Service Law.
Very truly 3'ours,

Robert T. Bushnell, Attorney General.

Public Safety; Inspection of Places of Assembly; Regidations; G. L. (Ter.

Ed.) c. 14^, § SB.

Nov. 13, 1944.

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

De.\r Sir: — You have asked my opinion as to whether the following
proposed regulation is a proper one to be made under G. L. (Ter. Ed.)
c. 143, §3B:

"Section 103. The duty of inspecting existing places of assembly is
placed by section 3A of Chapter 143 upon the local municipal officer or
Board and all action by inspectors of the Department acting under au-
thority granted such State inspectors by other sections of Chapter 143
shall therefore, be taken by such State inspectors through the municipal
officer or board acting under section 3A as the Commissioner's authorized

34 P.D. 12.

In my opinion, this proposed regulation is not a proper one. G. L.
(Ter. Ed.) c. 143, § 3B, provides:

"The commissioner of public safety, herein and in the six following
sections called the commissioner, subject to the approval of the board of
standards and appeals shall, and said board of its own motion may, make
rules and regulations relating to the construction, reconstruction, altera-
tion, repair, demolition, removal, use and occupancy, and to the standards
of materials to be used in such construction, reconstruction, alteration,
repair, demolition, removal, use and occupancy of any building or portion
thereof which, under section one, may be deemed to be a place of assembly;
and such rules and regulations shall be in accord with the generally
accepted standards of engineering practice and not inconsistent with
law. ..."

The duty of inspecting places of assembly has been placed upon state
inspectors as well as upon various municipal officers, and the duty of
taking appropriate action to remedy faulty conditions discovered by
state inspections in places of assembly has been placed by the Legislature
upon the state inspectors as well as upon municipal officers (see G. L.
(Ter. Ed.) c. 143, as amended, §§ 15, 21, 28, 31, 36, 37, 38, 54, 55).

The proposed regulation purports to relieve the state inspectors from
full compliance with these duties placed upon them by the ' Legislature
and to destroy their power to perform fully such duties themselves by
providing that they shall take action to compel the remedy of faulty con-
ditions discovered by them in places of assembly through municipal offi-
cers. Although certain municipal officers, acting as representatives of the
Commissioner of Public Safety under G. L. (Ter. Ed.) c. 143, § 3A, have
duties of inspection and enforcement with relation to places of assembly as
do state inspectors, this fact does not lessen the obligation of the state
inspectors to perform their corelative duties in person nor enable them to
escape responsibility by a delegation of their authority of enforcement
to municipal officers.

It is apparent, therefore, that the provisions of the proposed regulation
limiting the exercise of that authority, which has been vested in the state
inspectors, by requiring that their actions necessary to the enforcement
of the laws relative to places of assembly shall be taken through municipal
officers, are repugnant to the intent of the Legislature with regard to the
duties and powers of such inspectors as expressed in said chapter 143.

The exercise of the rule-making power by an administrative department
or officer does not authorize the making of a rule or regulation in opposi-
tion or repugnant to the legislative intent as expressed in a statute of
general application. The authority vested in officers or employees by the
Legislature may not be reduced by a departmental rule or regulation as
would be the case under the proposed regulation. Wyeth v. Cambridge
Board of Health, 200 Mass. 474, 481. Commonwealth v. McFarlane, 257
Mass. 530. Commonwealth v. Johnson Wholesale Perfume Co., 304 Mass.
452, 457.

It follows that the proposed regulation is not a proper one and, if
adopted, would be without validity.

I see no objection to the legality of the compromise proposed b}' you.
Whether this compromise should be adopted as a rule is a question of
policy on which I express no opinion.

Very truly yours,

Robert T. Bushnell, Attorney General.

P.D. 12. 35

Civil Service — Promotions in Clerical Service of Municipal Fire Depart-
ment— G. L. {Ter. Ed.) c. 31, § 15 or § 20.

Nov. 27, 1944.
Hon. Thomas J. Greehan, Director of Civil Service.

Dkar Sir: — You have asked my opinion as to whether promotions in
the clerical service of the fire departments of cities and towns are regulated
by G. L. (Ter. Ed.) c. 31, § 15, or § 20.

Section 15 of said chapter 31, as amended, sets forth general provisions
regulating promotions in the official service. However, it provides that
such provisions shall apply "except in police and fire departments."

Section 20 of said chapter 31, as amended, sets forth provisions regu-
lating promotions, somewhat different from those of said section 15, appli-
cable to "promotions in such police forces and fire forces of cities and towns
as are within the classified civil service."

The answer to your request depends upon the construction which should
be put upon the word "departments" as used in the quoted phrase of
exclusion contained in said sectfon 15.

I am informed that in the administration of the Civil Service Law your
division has construed the word "departments" in said section 15 as
embracing only those members of the police who engage in actual police
duty as such and those firemen who are employed in Jir'e fighting forces:
that is, you have interpreted the word "departments" in said section 15
as being synonymous with the word "forces" in said section 20.

I am of the opinion that this construction which you have adopted is

The word "department" is susceptible of different meanings with rela-
tion to police and fire organizations. According to the context in which
it is employed, it may comprehend all the activities associated with the
administration of a municipal pohce or fire organization, or it may be
restricted so as not to include the clerical and auxiliary employees of such
an organization. Elliott v. Fire Commissioner of Boston, 245 Mass. 330.
Fickeft V. Firemen's Relief Fund, 220 Mass. 319. Nolan v. Boston Fire-
men's Relief Fund, 236 Mass. 420.

The word "forces" in the statute as applied to firemen has an accepted
meaning as designating the employees engaged in fire fighting {Elliott v.
Fire Commissioner of Boston, 245 Mass. 330. 332) and as applied to police-
men, it would appear to signify those engaged in the duty of policing as

Said section 20 as originally enacted (St. 1920, c. 368) was made appli-
cable to "pohce forces." Its provisions were extended to "fire forces" by
an amendment made by St. 1939, c. 419, § 3.

The said provisions of section 15, excluding "police and fire depart-
ments" from the general requirements made by that section for promotions
in the official service, were first enacted by St. 1939, c. 506, § 2.

It is to be assumed that the Legislature when making a new enactment
is familiar with pre-existing statutory provisions related to the same
subject matter (Devney's Case, 223 Mass. 270; Kneeland v. Emerton, 280
Mass. 371), and intended that the new and old provisions should be parts
of an harmonious whole, especially when the new and the old are enacted
in the same year. Commonwealth v. King, 202 Mass. 379, 388.

Inasmuch as no provisions are to be found in section 20 with regard to
the promotions of any employees of a police or fire department other than

36 P.D. 12.

those of employees in the "poHce or fire forces," clerical and auxiliary
employees would be left without statutory provision for promotions if the
word "departments" in section 15 were not employed in the same sense
as the word "forces" used in section 20.

It cannot reasonably be thought that the Legislature intended to pro-
duce such a result. It follows that the word "departments" should be
construed in its limited sense as synonymous with "forces" in order that
an effectual, reasonable and harmonious interpretation may be given to
the statute (G. L. (Ter. Ed.) c. 31) as a system of Civil Service Law.

"A statute as a whole ought, if possible, to be so construed as to make
it an effectual piece of legislation in harmony with common sense and
sound reason."

Morrison v. Selectmen of Weymouth, 279 Mass. 486, 492.
Very truly yours,

Robert T. Bushnell, Attorney General.

Emergency Public Works Commission — Postwar Projects — Port of Boston.

Nov. 30, 1944.

Emergency Public Works Commission.

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

"Is the Emergency Public Works Commission empowered by chapter
517 of the Acts of 1943 to prepare plans and specifications for the construc-
tion as a postwar project of the piers authorized by chapter 714 of the
Acts of 1941, provided the funds for such plans and specifications are made
available from the Governor's Emergency War Fund?"

I answer this question in the negative.

St. 1943, c. 517, authorized the Emergency Public Works Commission
"to prepare a program of post-war public works which may be undertaken
by the commonwealth, and to submit such program to the governor."
It was provided that the program "shall include provisions deemed desir-
able for the preparation, during the continuance of the war, of plans, sur-
veys and other information needed to permit prompt, effective and eco-
nomical action in the period immediately following the termination of the
existing states of war. . . ."

It does not appear from the phraseology employed to have been the
intent of the Legislature in enacting said chapter 517 to entrust to the
Emergenc}'^ Public Works Commission authority to prepare, as a part of
its postwar program, plans and specifications for particular public works
for which the Legislature has already provided by vesting the authority
to construct in a specified department of the Commonwealth.

St. 1941, c. 714, is entitled "An Act authorizing the department of public
works to acquire certain waterfront properties in the city of Boston, to
construct a pier thereon and to lease the same."

By its terms the Department of Public Works is authorized, for the
purpose of improving the pier facilities in the Port of Boston, to acquire
so much of certain designated real properties as might be necessary to
construct ramps and their accessories essential to the development of a
waterfront terminal, with highway and railroad connections. The depart-
ment is also authorized to construct a pier, with sheds, tracks, roadways

P.D. 12. 37

and other apT>urtenaiices, to "dredsjo berths ai t! •ipuroaches th?reto and
provide such other accessories as it may deem desirable," and to lease the
])roperty to a responsible party.

Plainly the duty and the authority to prepare i)lans and specifications
for the construction of the ramps, piers and accessories which the depart-
ment is authorized by said chapter 714 to construct in the development of a
waterfront terminal had been entrusted to the Department of Public
Works before the enactment of said St. 1943, c. 517. Whether the con-
struction which the said department is empowered to undertake is a project
presently to be carried out or is one which of necessity becomes a postwar
project, it is clear that the authority to make plans and specifications and
to do other similar necessary work incident to such construction or to the
])reparation for such construction is vested in the said department.

There is nothino- in the provisions of said St. 1943, c. 517, authorizing
the EMieri2;ency Public Works Commission to prepare a postwar program
of public works, which operates to repeal St. 1941, c. 714, or which indicates
that the Legislature intended that said Commission in preparing a post-
war program should take over or duplicate work already entrusted to
another agency of the Commonwealth in connection with a scheme for
development and construction specifically authorized by the Legislature,
and as a part of w'hich the adoption and execution of the detail of the
work have been entrusted to the discretion of such agency.
Very truly yours,

Robert T. Bushxell, Attorney General.

Insurance — Group Annuity Contracts — Approval — Options —
Particular Provisions.

Deo. 1, 1944.

Hon. Charles F. J. Harrinoton, Cominissioner of Insurance.

Dear Sir: — You have asked mj^ opinion upon four questions with
relation to the form of a group annuity contract, which you have laid
before me.

You inform me that for many years the Department of Insurance has
required life insurance companies issuing such contracts to file them for
the purpose of j-our approval.

1. Your first question reads:

"Is the approval of the Commissioner of a group annuity contract
necessary before such contracts may be issued in the Commonwealth?"

I answer this question in the affirmative.

In an opinion w^hich the Attorney General rendered to you on September
29, 1944 (ante, p. 22), it was held that you had the authority and the
duty to approve or disapprove a form of group annuitv contract.

G. L. (Ter. Ed.) c. 175, § 132, as amended, provides that:

"No policy of life or endowmient insurance and no annuity, survivorship
annuity or pure endowment contract shall be issued . . . until a copy of the
form thereof has been on file for thirty days with the conitnissiofier, iinless
before the expiration of said thirty days he shall hare approved the forrn
of the policy or contract in writinq: nor if the commissioner notifies the
company in writing, within said thirty days, that in his opinion the form

38 . P.D. 12.

of the policy or contract does not comply with the laws of the common-
wealth, specifying his reasons therefor, ..."

I am of the opinion that the words "annuity contract" as employed in
said section are sufficiently broad to include a group annuity contract.
Although the Legislature has seen fit to define a group life insurance
poHcy in section 133 of said chapter 175, as amended, and has specifically
provided for its approval by the Commissioner in section 134 of said
chapter 175, as amended, and has omitted similar specific provisions with
regard to group annuity contracts, nevertheless, in view of the general
legislative design of subjecting contracts of life insurance companies to
the approval of the Commissioner, as shown in said chapter 175, such
omission cannot well be taken as showing a legislative intent to exclude
annuity contracts issued to a group from the safeguard of effective scru-
tiny by the Commissioner, which is required by said section 132 for annuity
contracts generally as well as for Hie policies.

2. Your second question is :

"Have the rules and regulations and the applicable provisions of section
134 which are used by the Department in examining group annuity con-
tract forms the force of law, and, in the event of disapproval of a group
annuity contract form, are they sufficient to comply with the statutory
requirement that the Commissioner specify his reasons whereby the con-
tract does not comply with the laws of the Commonwealth?"

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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 4 of 10)