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motion may come into existence, for by G. L. (Ter. Ed.) c. 31, § 3, it has
provided with relation to the Rules of the Civil Service Commission that:

"... Such rules . . . shall include provisions for the following: —



(/) Preference to veterans in appointment and promotion, not incon-
sistent with this chapter."

The terms of G. L. (Ter. Ed.) c. 31, § 3 (f), were contained in G. L.
(Ter. Ed.) c. 31, § 3, when said St. 1922, c. 463, was enacted. Voume v.
Director of the Division of Unemployment Compensation, 306 Mass. 567, 571.

The legislative provision, however, is not self-executing by its terms;
it requires to be implemented by the rule-making power of your Com-
mission. This power your Commission has never exercised and in spite
of the requirement that the rules formulated by the Commission "shall
include" provisions concerning veterans' preferences, both in appointment
and promotion, no rule or regulation with regard to preference of veterans
in promotions has ever been made.

From the manner of employment by the Legislature in said chapter 31
of the words "appointment", "employment" and "promotion" as dis-
tinct and separate terms, it is clear that none of the three words was used
as embodying the meaning of either of the others.

It follows that at the present time, since no rule with relation to veterans'
preferences in promotion has been made by your Commission, no provi-
sion of law exists whereby in a competitive examination for promotion
from a position in one class or grade to a position in a higher grade or class,
held under the terms of the second sentence of the last paragraph of said
section 15, preference may be given to a disabled veteran.
Very truly yours,

Clarence A. Barnes, Attorney General.



Civil Service — Custodian of Municipal Building — '^0[ficer" —

''Employee".

Feb. 9, 1945.
Hon. Thomas J. Greehan, Director of Civil Service.

De.^r Sir : — You have asked my opinion as to whether the position
of custodian of the G. A. R. Memorial Building in Lynn is subject to the
provisions of the Civil Service Law.

I answer j^our question in the affirmative.

By the terms of the Civil Service Rules (Rule 4.1.) made under authority
of G. L. (Ter. Ed.) c. 31, § 3, the position of custodian of a municipal pub-
lic building would appear to have been made subject to the Civil Service
Law by the establishment through said Rule of Class 24 of the classified
Civil Service. This class is described in said Rule as consisting of:

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



VAX 12. 55

By Spec. St. 1919, o. 220, the City of Lynn was autliorized to accept in
trust a conveyance of the said Grand Army building;, and by section 4 of
said chapter 220 an unpaid board of seven trustees, to be appointed by
the mayor with the api)roval of tlie city council, was created by the statute
and empowered :

"to have charge and care of the building subject to the approval of the
mayor and city council."

Provision was made in said section 4 for a custodian of the building and
authority for his appointment and removal was given as follows:

"They (the trustees) shall appoint a custodian therefor, and shall fix
his compensation but the custodian may at any time be removed by the
trustees, or a majority of them, without such apjiroval. The trustees may
appoint other necessary officers or employees for the care of the building,
and may fix their compensation."

The duties of the custodian are not set forth in the statute and there is
nothing to indicate that his position is other than an employment. There
is nothmg about the position of a custodian of a building, as the word
"custodian" is ordinarily used, which tends by necessary implication to
carry with it a grant of any part of the authority of the state or munici-
pality as such, so as to raise the position to the status of an "office." The
use of the words "other necessary officers or employees" in the last sen-
tence of said section 4 above quoted, does not indicate a legislative intent
to make the place of custodian an office.

It follows that the place in question is not an office and the incumbent
not an "officer" as the word "officer" is used in G. L. (Ter. Ed.) c. 31, § 4,
exempting certain "officers" from the sweep of the Civil Service Law in
the following language:

"No rule made by the (civil service) commission shall apply to the
selection or appointment of any of the following:

. . . officers whose appointment is subject to confirmation by the . . .
city council of any city; ..."

The place in question does not fall within any of the other exemptions
from the Civil Service Law provided for in said section 5.

There is nothing in the phraseology of said section 4 of chapter 220 with
relation to the place which by implication indicates a legislative intent to
exempt it from the force of the Civil Service Law. The provision in said
section 4 that "the custodian may at any time be removed by the trustees
. . . without such approval" (i.e. approval by the mayor and city council),
while providing that removal from the position may be made by the trus-
tees without tlie necessity of obtaining approval of their action from the
mayor and council, as might otherwise have been thought to be required
by the phrase in said section 4, "the trustees shall have charge and care of
the building and of its maintenance and use, subject to the apjoroval of the
mayor and of the city council," does not vest the trustees with power to
remove in any other fashion than that required by the Civil Service Law
in G. L. (Ter. Ed.) c. 81, § 43.

It has not been held that an intent on the part of the Legislature to
exclude a position from the benefits of the Civil Service Law can properly
be said to arise by implication from the wording of a statute except when a



56 P.D. 12.

specific provision relative to appointment or removal directly contrary
to the general terms of G. L. (Ter. Ed.) c. 31, has been set forth, a provi-
sion, for example, authorizing removal at "pleasure." Opinion of the
Attorney General to the Civil Service Commission (Attorney General's
Report for year ending June 30, 1944, p. 144). No such provision with
relation to the place in question has been made by the Legislature.

Unless a place in the public service has been specifically or impliedly
excluded by the Legislature from the control of the Civil Service Law and
Rules, or is within some group of places w^hich has been so specifically or
impliedly excluded, it is within the sweep of those measures and is governed
by them when, like the place under consideration, it falls within a, classi-
ficp^tion established by the Civil Service Commission. Wells v. Commis-
sioner of Public Works, 253 Mass. 416, 419.
Very truly yours,

Clarence A. Barnes, Attorney General.

Civil Service — Promotions — G. L. {Ter. Ed.) c. 31, § 15.

Feb. 26, 1945.
Hon. Thomas J. Greehan, Director of Civil Service.

Dear Sir : — In a recent letter you have written me as follows :

"I have been requested to approve the promotion of an employee who
is the fifth oldest employee in point of service in the next lower grade, in a
case where the oldest and second oldest employees are unwilling to be con-
sidered for the promotion.

The question has arisen as to whether the words quoted mean the oldest,
second oldest or third oldest who are willing to accept such promotion.

I would, therefore, respectfully request your opinion on the point raised,
all the other conditions for approval of promotion being present except
that of determining the meaning of these words."

G. L. (Ter. Ed.) c. 31, § 15, as amended, in its applicable parts reads:

". . . an appointing official may with the approval of the director pro-
mote in the official service an emploj^ee in one grade to the next higher
grade; provided, that such employee has been employed at least three
years in the lower grade, is the oldest employee, the second oldest employee
or the third oldest employee therein in point of service, and that such em-
ployee passes a qualifjnng examination ..."

The phraseology used by the Legislature in the quoted sentence is ex-
plicit as to the employees who may be promoted in the manner described.
Such specific provision by a well-recognized rule of statutory construction
excludes the inclusion therein of employees not designated in view of the
fact that such a construction is not opposed to the purposes of the Civil
Service Law^ and there appears to be nothing in the statute to indicate a
legislative intent to give the privilege of promotion without a competitive
examination to anyone but the three employees in the appropriate grades
who are actually the three oldest "in point of service." Words such as
"who are wilhng to accept such promotion" cannot properly be read into
the statute.

Very truly yours,

Clarence A. Barnes, Attorney General.



P.D. 12. 57

Food — Sale of Canned Lobster Meat — Label.

March 5, 1945.
Mr. Ralph H. Osborn, Director, Division of Marine Fisheries.

Dear Sir: — You have asked my opinion as to whether it is legal to
sell in the Commonwealth canned lobster meat derived from "erustacea
of the species genus poUnunis" labeled with various trade names and with
the word "lobster" preceded by the word "rock."

I am of the opinion that a sale of such lobster meat so labeled would be
in violation of G. L. (Ter. Ed.) c. 130, § 51.

Said section reads:

"No person shall sell, or represent for the purpose of sale, any lobster
as a native lobster unless the same shall have been originally caught or
taken in the coastal waters; nor shall any person so sell, or represent for
the purpose of sale, any crustacean as a lobster unless the same is of the
species known as Homarus americanus; nor shall any person so sell, or
represent for the purpose of sale, any meat as lobster meat unless such meat
is wholly from crustaceans of such species. Violation of any provision of
this section shall be punished by a fine of not less than ten nor more than
fifty dollars."

It would appear that the described labeling represents the canned meat
to be "lobster meat." Neither the trade names nor the use of the word
"rock" can reasonably be said to alter the nature of such representation.
You have stated the fact to be that the canned meat in question is not
from a lobster of the species known as "Homarus americanus." This
being so, its sale as "lobster meat" is contrary to the provisions of said
section 51.

Section 46 of said chapter 130 permits the sale of canned "lobster meat"
when certified by health authorities under certain designated circumstances
but the provisions of section 46 do not authorize the sale of canned "lobster
meat" of a kind forbidden by the specific provisions of said section 51.
The sections of said chapter 130, as of all statutes, are to be read together
so as to form as far as possible an harmonious whole {Killam v. March,
316 Mass. 646; Fluett v. McCabe, 299 Mass. 173, 178.).
Very truly yours,

Clarence A. Barnes, Attorney General.



Insurance — Fraternal Benefit Society — By-Laws — Delegation of
Authority — Election of Officers.

March 9, 1945.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have informed me that:

"In connection with a recent examination conducted by this Depart-
ment of the affairs of a domestic fraternal benefit society incorporated
on the Lodge System, a question has arisen as to the power of the society to
enact a by-law authorizing its executive committee which has the powers
of directors to appoint the supreme treasurer and the supreme secretary."



58 P.D. 12.

and you have asked my opinion as follows:

"Will you please advise us as to whether or not a society of this kind
may by by-law delegate to its executive committee the right to appoint
its supreme treasurer and its supreme secretary."

I am of the opinion that such a society may not by by-law delegate to
its executive committee the right to appoint its supreme treasurer and
secretary.

The method of organizing such a society at its first meeting is set forth
in G. L. (Ter. Ed.) c. 176, § 7. The third sentence of said section 7 reads:

". . . At such first meeting, including any reasonable adjournment
thereof, an organization shall be effected by the choice by ballot of a
temporary clerk, who shall be sworn, and by the adoption of by-laws,
and the election by ballot of directors, president, secretary and treasurer,
or other officers corresponding thereto, with powers and duties similar to
those of such officers, and such other officers as the by-laws may provide
for; but at such election no person shall be eligible as a director or other
officer who has not subscribed the agreement of association."

Section 3 of said chapter 176, as amended, reads as follows:

' "Any such society shall be deemed to have a representative form of
government when it shall provide in its constitution and by-laws for a
supreme legislative or governing body, composed of representatives
elected either by the members or by delegates elected directly or indirectly
by the members, together with such other members as may be prescribed
by its constitution and by-laws; and provided, further, that the meetings
of the supreme or governing body and the election of officers, representatives
or delegates shall be held as often as once in four years, and that a complete
stenographic record of the proceedings of each such meeting, so far as it
■ relates to matters within the jurisdiction of the commissioner of insur-
ance, shall be filed in the home office of the society within thirty days
after the adjournment of such meeting. The members, officers, representa-
tives or delegates of a fraternal benefit society shall not vote by proxy."

Section 32 of said chapter 176, as amended, relative to the constitution
and by-laws of such a society, provides:

"Every society may, subject to this chapter, make a constitution and
by-laws for its government, admission of members, management of its
affairs, and the fixing and readjusting of the rates and contributions of its
members frpm time to time, and may amend its constitution and by-laws,
and it shall have such other powers as are necessary or incidental to carry
into effect its objects and purposes. The constitution and by-laws may
prescribe the officers and elected members of standing committees, who
may be ex officiis directors or other officers corresponding thereto, and
may, with the approval of the commissioner, provide for a system of absent
voting, other than proxy voting, under which absent members entitled
to vote may vote in the election of the officers and directors or similar
governing body; provided, that the commissioner shall not approve any
provision for such a system of absent voting unless the society submitting
such provision for approval satisfies the commissioner that absent voting
is necessary in order to have an adequate representation of the member-
ship of the society at its elections."



P.D. 12. ')[)

St. 1901, c. 422, from which the provisions of said sections 3, 7 and 32
stem, provided in its section 4 for the election at tlie first meeting of such a
societv for organization of officers bv ballot, and in section 6 provided
that ■/

"Officers chosen as requinHl in section four shall hold office until the
next meeting of the corporation for the election of officers. ... At the
said meeting, and thereafter at least biennially, the officers shall be chosen,
and shall hold office until their successors are elected and qualified. . . ."

Section 5 of said chapter 422 provided with relation to b3'-laws in part
as follows:

"The by-laws may prescribe, where no other provision is specially made,^
the manner in which and the officers ... by whom the piu'poses of the
corporation shall be carried out; ..."

Similar provisions, including one for the election of a secretary at the
first meeting, appear likewise in the revision of the law relative to such
societies in St. 1911, c. 628.

In said chapter 422, section 3, the Legislature made plain its intent that
the officers elected at the first meeting of such society were to be there-
after elected by the members, and by said section 5 vaiuh clear that the
by-laws might prescribe the manner of election of officers only in such
instances as had not been provided for by statute.

I am of the opinion that in the compilation of the law relative to such
societies in said chapter 176 of the General Laws, the Legislature in re-
quiring the election of the designated officers at the first meeting and "the
election of officers ..." thereafter "as often as once in four years,"
provided the manner of such election, and that the power to make by-
laws given by said section 32 of chapter 176 was not intended to grant
any authority to make by-laws with relation to the manner of election of
officers when such provision had been specifically made by the Legislature
itself, as in said section's 3 and 5.

\'erbal changes in the re-enactment or codification of earlier statutes
are to be treated, by a familiar principle of statutory construction, as not
altering the meaning of such statutes but as continuations of the previous
law. Delaney v. Grand Lodge A.O.U.W., 244 Mass. 556, 563. Davis v.
School Committee, 307 Mass. 354, 361, 363.
Very truly yours,

Clarence A. Barnes, Attorney General.

Constitutional Law — Alcoholic Beverages — Sales — Aliens — Treaty with

Great Britain.

March 9, 1945.

His Excellency Maurice J. Tobin, Governor of the Commonwealth.

Sir: — Your Excellency has advised me of the case of a British suljject
who was discharged from her position, which I assume from what you
have written, to have been that of a waitress, serving alcoholic beverages
in a restaurant licensed under the provisions of G. L. (Ter. Ed.) c. 138,
as amended, by her employer because he was threatened with prosecution
under G. L. (ter. Ed.) c. 138, § 31, as amended, for employing her since
she was not a citizen of the United States.



60 P.D. 12.

You have asked my opinion as to whether said section 31 is repugnant
to the terms of the existing Treaty between the United States and Great
Britain made in 1815, and with minor changes still in force.

Statutes which are in opposition or repugnant to treaties of the United
States are of no more force than unconstitutional statutes. Todok v.
Union State Bank, 281 U. S. 449, 453; In re Wyman, 191 Mass. 276.
Statutes, however, are to be construed whenever reasonably possible so
as to give them an interpretation which will prevent their being invalid
or ineffective (Lehan v. North Main St. Garage, 312 Mass. 547, 559).

Construed so as to prohibit the employment of a British subject to
serve liquor in a licensed restaurant, the said section would in my opinion
be repugnant to said Treaty*

To be valid and enforceable, the section is to be construed as having
no application to aliens who are British subjects.

Said G. L. (Ter. Ed.) c. 138, § 31, reads:

"No person, except a citizen of the United States, shall sell, serve or
deliver any alcoholic beverages or alcohol on any premises covered by a
license, permit or certificate of fitness issued under this chapter, and no
holder of such a license, permit or certificate of fitness shall, directly or
through any agent, employ or permit any such person to sell, serve or
deliver any alcoholic beverages or alcohol upon the premises covered by
such license, permit or certificate. No holder of a transportation permit
issued under this chapter shall, directly or through any agent, employ or
permit any person, except such a citizen, to transport any alcoholic bever-
ages or alcohol. Whoever violates any provision of this section shall be
punished by a fine of not less than twenty-five nor more than one hundred
dollars, and such a violation, if committed by the holder of a license,
permit or certificate of fitness issued under this chapter, shall be sufficient
cause for the revocation or suspension thereof."

The applicable portion of the existing Treaty between the United States
and Great Britain (8 Stat. 228) reads:

"Article I.

There shall be between the territories of the United States of America,
and all the territories of His Britannick majesty in Europe, a reciprocal
liberty of commerce. The inhabitants of the two countries, respectively,
shall have liberty freely and securely to come with their ships and cargoes
to all such places, ports, and rivers, in the territories aforesaid, to which
other foreigners are permitted to come, to enter into the same, and to
remain and reside in any parts of the said territories, respectively; also
to hire and occupy houses and warehouses for the purposes of their com-
merce; and, generally, the merchants and traders of each nation, respec-
tively, shall enjoy the most complete protection and security for their
commerce, but subject always to the laws and statutes of the two countries,
respectively."

Although it is true that not every gainful occupation in which a British
subject may engage while in the United States can reasonably be said to
be so related to "commerce" as to be within the guaranties of the said
Treaty for securit}^ to carry on commerce (Clark v. Deckerbach, 274 U. S.
392), yet a hberal rather than a narrow construction should be given to



P.D. 12. 61

the phraseology of the Treaty {In re Wymau, 191 Mass. 276, 278; Tucker
V. Alexandroff] 183 U. S. 424, 437; Asakura v. City of Seattle, 265 U. S.
332, 342), to effectuate what under present-day conceptions would appear
to be the intent of the treaty makers, namely, to accord the same liberty
to pursue commercial affairs to British subjects as to citizens of the United
States.

To sell alcoholic beverages in a licensed restaurant or to assist in selling
by serving them as a waiter or waitress is, as has been held by one of my
predecessors in office (Attorney General's Report, 1938, pp. 56, 57), to
perform commercial work and to carry on commercial affairs so related to
"commerce" as to be comprehended by the quoted word as used in the
said Treaty and to bring the person so emploj^ed within the sweep of the
words "merchants and traders" as set forth in the Treaty.

It follows that the said section 31 does not prohibit the employment of
British subjects to perform the work described therein in connection with
the sale, service or delivery of alcoholic beverages.
Very truly yours,

Clarence A. Barnes, Attorney General.

Military Leave of Absence — Resignation — United States Puhlic

Health Service.

March 14, 1945.
Hon. Clifton T. Perkins, Commissioner of Mental Health.

Dear Sir: — You have asked my opinion upon the following question
with relation to the specific case of Dr. Irene O. Grandmont, formerly
Assistant Physician at the Foxborough State Hospital:

"Does an Assistant Physician who enters the United States Public
Health Service come under the provisions of Chapter 708 of the Acts of
1941, when the physician in question was assigned to duty immediately
with the United States Coast Guard, according to data submitted by
her?"

You have informed me that Dr. Grandmont did not file a written resigna-
tion when leaving the service of the Commonwealth at some time prior
to December 7, 1944, but gave only an oral notice of resignation to the
superintendent of the said hospital; that at the time of giving such notice
she informed the superintendent that she was leaving to enter the United
States Public Health Service; that subsequently she did enter the Public
Health Service; that immediately thereafter she was detailed to serve in
the United States Coast Guard.

The United States Public Health Service (U. S. C. Title 42) is not as
such a part of the, naval or military forces of the United States. • The
personnel of the United States Coast Guard is a part of the naval forces
of the United States (U. S. C. A. 14, 1943, Pub. Law 184, c. 298) by virtue
of an executive order of the President (Exec. Ord. Nov. 1, 1941, P>d. Reg.
Vol. 6, p. 215).

St. 1941, c. 708, § 1, as amended by St. 1943, c. 548, provides that :
"... any person who . . . shall have tendered his resignation from
an office or position in the service of the commonwealth, . . . for the
purpose of serving in the military or naval forces of the United States and



62 P.D. 12.

who does so serve , . . shall ... be deemed to be ... on leave of
absence; . . .

... If no written resignation is filed, entrance into the military or naval
service of the United States . . . shall he 'prima facie evidence that his


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