Massachusetts. Office of the Attorney General.

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

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abolished by Gen. St. 1919, c. 350, pt. Ill, § 39. By a series of enactments
the powers which they formerly exercised with relation to marine fish,
including shellfish, have been vested in an official called the Director of the
Division of Marine Fisheries (Gen. St. 1919, c. 350, pt. Ill, § 43; G. L.
(Ter. Ed.) c. 21, § 6; St. 1929, c. 372, § 1; St. 1939, c. 491, §§ 1, 8: St.
1941, c. 598, § 6, c. 599, § 3).

The authority to make the leases under consideration has now vested
in the Director of the Division of Marine Fisheries. This authority is not
affected by the provisions of G. L. (Ter. Ed.) c. 130, § 104, inserted by St.
1941, c. 598, to which you refer in your question. Section 104 reads:

"This chapter shall not be deemed to affect any provisions or penalties
contained, or any privileges granted, in any special statute relating to
fisheries in any particular place, except such provisions thereof as relate
to shellfish and shellfisheries and to the alewife fisheries."

Since the provisions of said St. 1912, c. 710, which are affected by G. L.
(Ter. Ed.) c. 130, as amended, are provisions relating to shellfish and shell-
fisheries, such effect is not modified by the terms of this section.
Very truly yours,

Robert T. Bushnell, Attorney General.

Architects — Registration — "Residence" — "Prior" — St. 1941, c. 696 § 3.

Dec. 27, 1944.

Mrs. Hazel G. Oliver, Director of Registration.

Dear Madam: On behalf of the Board of Registration of Architects
you have asked my opinion upon two questions relating to registration of

1. The first question reads:

"What is considered a person's legal residence?"

Inasmuch as the words "legal residence" do not occur in the statutes
relating to the duties of the said Board nor in the "Application for Certi-
fication as a Registered Architect," prepared by the Board, and because a
construction of said words is not germane to the performance of any duty
required of the Board, the question appears to be hypothetical and is,
therefore, one which the Attorney General following a long line of practice
does not answer (Attorney General's Report, 1935, p. 31).

For the guidance of the said Board, I inform you that th(^ words "legal
resident of Massachusetts," as used by said Board in section 4 (g) of the
"Application" are not synonymous with the words "citizens of the com-
monwealth" as employed by the Legislature in St. 1941, c. 696, § 3, con-
cerning an applicant for registration.

2. Your second question reads:

P.D. 12. 17

"Does the word 'prior' in the following quotation from the Board of
Registration of Architects' Law mean 'immediatelv' prior? Section 3,
chapter 696, Acts of 1941.

'Anj^ person compl3-ing with section sixty D of chapter one hundred
and twelve of the General Laws, inserted by section two of this act, who
applies to the board of registration of architects prior to January first,
nineteen hundred and forty-three, and has been a citizen of the common-
wealth for at least two years prior to date of application, shall be given a
certificate of registration if qualified as follows: — '"

The reference to "section sixty D" appearing in said section 3, is plainly
a typographical error and was intended to read section C, or B, for unless
so read it is without meaning.

Reading the statute in the latter manner, I answer your question in
the affirmative.

The word "prior" may be used in more than one sense. It may refer,
as it most commonly does, to any time antecedent to a particular event
or it may refer only to a time which occurred just before an event. Its
precise meaning in any instance is to be gathered largely from the context.
When used, as in said section 3, with "to" in conjunction with a phrase
such as "at least two years" it msiy be construed as meaning "immedi-
ately prior to." Co7nmonwealth v. Stephens, 345 Pa. 436. It would appear
from the phraseology of the provision made by the Legislature in said
section 3 with regard to citizenship that it was intended that the benefits
of said section were to inure to persons who were citizens of the Common-
wealth at the time of application for registration, not to persons who
were no longer citizens at such time though possessing citizenship at some
previous period. In order to effectuate such intent, it was also provided
that the necessary citizenship existing at the time of application should
have a continuous status for two years before such application was made.
This intent was expressed by employing the words "and has been a citi-
zen of the commonwealth for at least two years prior to date of appli-

Very truly yours,

Robert T. Busknell, Attorney General.

Old Age Assistance — Husband and Wife — Tenancies.

Dec. 27, 1944.

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

Dear Sir: — You have asked my opinion upon two questions of law
which are as follows: —

"(1) Where husband and wife own real estate upon which they reside,
having an equity of $5,030 as joint tenants. If husband is receiving
assistance, should he be required to execute a bond ; or if wife is receiving
assistance, should she be required to execute a bond; and what is the
requirement, if any, as to bond and mortgage where both are receiving

(2) The same questions raised in (1) where the real estate is held as
tenants by the entirety."

48 P.D. 12.

1. In answer to your first question, I advise you that in my opinion
when husband and wife own real estate as joint tenants, upon which
estate they reside and have an equity therein of $5,030, if the husband or
wife receives old age assistance, he or she may not be required to furnish
a bond and mortgage under G. L. (Ter. Ed.) c. 118A, §4, upon the theory
that he or she owns an equity in such estate exceeding $3,000. The same
principle applies if both are receiving assistance.

G. L. (Ter. Ed.) c. USA, § 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
not disqualify him from receiving assistance under this chapter; pro-
vided, 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 ex-
cess 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. . . ."

In an opinion rendered you on October 24, 1944 (ante, p. 30), I stated
that when real estate upon which husband and wife resided, owned by
them as tenants in common, had an equity of $5,030, neither one nor
both of them upon receiving old age assistance were required to furnish a
bond and mortgage under said chapter 118A, section 4, because "a tenant
in common cannot be said to be enriched b}^ that share of the total equi-
table rights in a piece of real estate which inure to the other tenant."

The same considerations apply when the estate is held by husband and
wife as joint tenants.

A joint tenancy and a tenancy in common are alike to the extent that
in both cases the co-tenants hold by unity of possession. They differ in
that joint tenants hold by one joint title and in one right, whereas ten-
ants in common hold by several titles and several rights. 33 Corpus
Juris 901.

The feature of joint tenancy which chiefly distinguishes it from tenancy
in common is the right of survivorship which exists in joint tenancy but
not in tenancy in common.

It has been stated by the Supremo Judicial Court that "the doctrine
of survivorship is the distinguishing incident of title by joint tenancy"
(Morris v. McCarty, 158 Mass. 11, 12, 13), but the right of survivorship does
not enable one to say of a joint tenant any more than of a tenant in com-
mon that he is "enriched by that share of the total equitable rights in a
piece of real estate which inure to the other tenant."

2. The foregoing principles apply also with relation to real estate of
tenants by the entirety, and I am of the opinion that a bond and mortgage
may not be required of such tenants receiving old age assistance in any
of the instances outlined in your second question.

A tenancy by the entirety is a tenancy by a husband and wife with
right of possession in the husband, and, as has been said by the Supreme
Judicial Court:

"An estate in entirety is an estate in joint tenancy, but with the limi-
tation that during their joint lives neither the husband nor the wife can

P.D. 12. • 49

destroy the right of survivorship without the assent of the other party."
Morris v. McCarty, 158 Mass. 11, 12.

Palmer v. Treasurer and Receiver General, 222 Mass. 263; I'ray v. .S7c6-
hins, 141 Mass. 219, 221.

An estate or tenancy in entirety is in its nature a joint tenancy and the
feature which chiefly distinguishes the former from the hitter tenancy in
no real sense indicates an enrichment of one tenant by that share of the
total equitable rights which inure to the other tenant any more than if
they were tenants in common. It follows, therefore, that a bond and
mortgage should not be required in the situation which you have set

Very truly yours,

Robert T. Bishnell, Attorney General.

Insurance — Classification of Fire Risks by Domestic Fire Insurance Com-
panies — Contracts made oidside the Commonwealth.

Jan. 16, 1945.

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

Dear Sir: — You have asked my opinion upon three questions of law
relating to the classification of fire insurance risks by domestic mutual
companies under G. L. (Ter. Ed.) c. 175, § 80, as amended.

1. Your first question reads:

"May a domestic mutual fire company apportion any of its fire insur-
ance risks located in the Commonivealth and insured under contracts made
in Massachusetts into classifications other than such classifications as are
definitely specified in section 80?"

I answer your ciuestion in the negative.

Said section 80 in its applicable portions provides: (1) that the direc-
tors of a mutual fire company may fix the percentages of dividend or ex-
piration return of premium to be paid on expiring or cancelled policies
which may, with the approval of the Commissioner of Insurance, be
different from policies insuring against the different kinds of risks speci-
fied in section 47 of said chapter 175 which may be written by such a
company; (2) with regard to polici(>s insuring against loss by fire the sec-
tion specifically provides that such percentage may be different for "farm
risks, fireproof risks, . . . manufacturing or storage risks, or manufac-
turing or storage risks confined to lumber and woodworking only" from
"that for pohcies insuring other risks against fire for the same term."
The section further provides that " policies insuring risks in this common-
wealth in the same classification shall have an equal rate of dividend or
return of premium."

Inasmuch as the Legislature in the foregoing terms of saitl section SO has
specifically designated the classes of fire risks which may be given per-
centages of dividend or expiration return of premium different from the
percentage established for other fire risks, ^ it has shown an intention that
such designated classes of fire risks shall be exclusive of any other fire
risks and has not accorded authority to domestic mutual fire companies
to add to such classes or to apportion y?re risks for the purposes of giving

50 P.D. 12.

different percentages into other classifications than those set forth in the
said section.

As a principle of construction, express mention of one or more matters
in a statute is generally held to exclude by implication other similar mat-
ters not mentioned. Boston it Albany Railroad v. Commonwealth, 296
Mass. 426, 434; Spence, Bryson, Inc. v. China Products Co., 308 Mass.
81, 88.

2. Your second question reads:

"Does the requirement of section 80 that classifications of risks be
approved by the Commissioner apply to classifications of risks which are
located outside the Commonwealth and insured under contracts made outside

I answer this question in the negative.

A contract of insurance made outside the Commonwealth is governed
by the laws of the State in which it is made. Bottomley v. Metropolitan
Life Ins. Co., 170 Mass. 274. Dolan v. Mutual Reserve Fund, 173 Mass.
197. Johnson v. Mutual Life Ins. Co., 180 Mass. 407, 408, 409. Stone v.
Old Colony Street Railway, 212 Mass. 459.

Fire policies written outside Massachusetts conforming in their terms
concerning classification for percentages of dividend or expiration return
of premiums with the laws of the State in which the contract is made are
valid. In making the various provisions respecting such classifications,
including approval by the Commissioner of Insurance, the Legislature
would appear to have been regulating the making of such contracts of fire
insurance only as are executed within the Commonwealth. As to these,
the provisions of said section 80 govern contracts made in Massachusetts
by both domestic mutual fire companies and by foreign mutual fire com-
panies (G. L. (Ter. Ed.) c. 175, § 150) irrespective of the laws of the
States where such foreign companies are situated, but as to contracts
made outside Massachusetts by domestic and foreign companies alike,
the provisions of said section 80 do not apply.

If the Legislature had intended to impose a prohibition in this connec-
tion upon domestic companies with respect to risks outside Massachu-
setts, it doubtless would have used words indicating such an intent, such
as, referring to the risks designated in section 80, "wherever located",
as was done in the amendment of R. L., c. 118, § 20, by St. 1907, c. 576,
§ 20, now embodied in G. L. (Ter. Ed.) c. 175, § 21, with respect to the
insurable limits of a single risk.

The provision in section 80 that "policies insuring risks in this com-
monwealth in the same classification shall have an equal rate of dividend
or return of premium" and the further provision that "every policy placed
in any classification made under this section shall, when issued, bear an
endorsement, satisfactory to the commissioner, to the effect that it is so
classified" indicate that the Legislature intended by the terms of section
80 to regulate the classifications therein provided for contracts made in
Massachusetts and did not intend in respect to such classifications to
attempt to regulate contracts made outside the Commonwealth.

3. Your third question reads :

"May a domestic mutual company apportion any of its risks located
outside Uie CommonwealtK and insured under contracts made outside Massa-
chusetts into classifications other than such classifications as are specified
in section 80?"

P.D. 12. 51

I answer this question to the effect that such a company may apportion
risks located and insured outside the Commonweahh into classifications
other than thosc^ specified in said section 80 if th(> hiw of the State where
the contract of insurance is made permits such classifications.

The same considerations which wen^ applicable to your .second finest ion
also apply to the third and make it apparent that th(>' implied prohibitions
contained in said section 80 of classifications other than specified
therein are not applicable to contracts of fire insurance made outside the

Very truly yours,

Robert T. Bushxell, Attorneij General.

Workmen's Compensation ~ Director of Division of the Blind — "Officer''

— '' Employee' \

Jan. 31, 1945.
Industrial Accident Board.

Dear Sirs: — You have asked my opinion upon three questions of law
regarding the application of the Workmen's Compensation Act to the
Director of the Division of the Blind.

1. Your first question reads:

"Is the Director of the Blind, appointed under G. L. (Ter. Ed.) c. 15,
§ 13, an 'employee' within the provisions of St. 1936, c. 403, amending
G. L. (Ter. Ed.) c. 152, § 69?"


I answer this question in the negative.

It is apparent from a consideration of the statutes concerning the place
of the said Director that such place is an office, not an employment, in
the service of the Commonwealth so that the incumbent is an officer and
not an employee.

The distinction between an officer and an employee is a well-recognized
one and has often been made by the Legislature and recognized by the
Supreme Judicial Court.

There are certain criteria which have been said by oiu- courts to dis-
tinguish an office from an employment: the holder of an office has en-
trusted to him some portion of the sovereign authorit}^ of the state, his
duties are not merely clerical but myst be performed in the administra-
tion of authority bestowed by law, a tenure defined by statute, a selection
of the holder by appointment imder statute rather than by a contract, a
salary fixed by law rather than by a contract of hiring. Attorneij General
V. Tillinghad, 203 Mass. 539, 543-545.

Judged by an application of this test, the place in question is an office.
The Director of the Division of the Blind is appointed by the Governor,
with the advice and consent of the Council, for a term of five 3^ears, at a
salary fixed by them (G. L. (Ter. Ed.) c. 15, § 15); he is the head of the
division (G. L. (Ter. Ed.) c. 69, § 17), and is vested with authority to
appoint and remove subordinate officers, agents, teachers and clerks, with
the advice of the advisory board in such division (G. L. (Ter. Ed.) c. 15,
§ 16) ; he is empowered to administer the law relative to the blind and
expend public moneys for the establishment of workshops and for the
relief of blind persons (G. L. (Ter. Ed.) c. 69, §§ 14, 16, 24).

52 P.D. 12.

It follows that the Director, who is the executive and administrative
head of the Division of the Blind, is an officer. See Robertson v. Commis-
missioner of Civil Service, 259 Mass. 447, 449, and cases there cited.

2. Your second question reads :

"Is the language contained in the amendment (chapter 403 of the Acts
of 1936) to the effect that the terms laborers, workmen and mechanics shall
include 'other employees . . . , regardless of the nature of their work,' to
be construed broadly as expressing the legislative intent that all 'persons'
in the employ of the commonwealth, as the governor and council may
determine, may be made subject to the provisions of sections 69 to 75,
both inclusive, of chapter 152 of the General Laws, as amended?"

I answer this question in the negative.

G. L. (Ter. Ed.) c. 152, § 69, as amended, in its applicable parts provides:

"... The terms laborers, workmen and mechanics, as used in sections
sixty-eight to seventy-five, inclusive (which sections relate to workmen's
compensation) shall include all employees of any such city or town, except
membcu's of a police or fire force, who are engaged in work being done
under a contract with the state department of public works, and shall
include other employees except members of a police or fire force, regard-
less of the nature of their work, of the commonwealth or of any such
county, city, town, district or county tuberculosis hospital district, to such
extent as the commonwealth or such county, city, town or district, acting
respectively through the governor and council, county commissioners,
city council, the qualified voters in a town or district meeting, or the
trustees of such county tuberculosis hospital district, shall determine, as
evidenced by a writing filed with the department."

The terms "laborers, workmen and mechanics" indicate employees of a
certain type. When the Legislature by an amendment of section 69, as
previously written by St. 1936, c. 403, added the words, as to which you
inquire, "other employees . . . regardless of the nature of their work,"
it did not indicate an intention to embrace officers of the Commonwealth
within the sweep of the Workmen's Compensation Law.

It is a general principle of statutory construction that a word used in a
statute is to be construed in connection with the words with which it is
associated. Commonwealth v. Dee, 222 Mass. 184, 186; Leavitt v. Leavitt,
135 Mass. 191, 193; In re Schouler, 134 Mass. 426, 427.

So the words "other employees," employed by the Legislature in said
section 69 in association with the terms "laborers, workmen and mechan-
ics "all of which terms refer to employees, are not to be construed as being
used in so broad or loose a sense as to comprehend officers as well as

The General Court has in other statutes employed the words "officers"
and "employees" as having distinct and separate meanings. Cf. G. L.
(Ter. Ed.) c. 31, § 5. If, in relation to the statute under consideration, the
Legislature had intended to make its provisions applicable to officers as
well as to employees of the Commonwealth, it doubtless would have so
indicated by using the word "officers" in addition to "employees" in the
sentence of said section 69 under consideration.

3. Your third question reads:

"Is the language 'other employees . . . regardless of the nature of
their work ' as used in said chapter 403 of the Acts of 1936 to be construed

P.D. 12.


in a restricted sense as limiting its application to those who ma^». ,, , . . . •

'employees,' in the narrow sense, as that term is distinguisheu i'*^'', "i

from the word 'officers,' as so used?" *'" . .^

d by

The same considerations which required me to answer your secotf

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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 6 of 10)