Massachusetts. Office of the Attorney General.

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

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service to the commonwealth ... is terminated for the purpose of entering
said military or naval service."

As appears by the foregoing statutory provisions, the fact that Dr.
Grandmont did not enter the naval forces of the United States in the Coast
Guard after resigning, is prima facie evidence that she left the service of the
Commonwealth for the purpose of entering such forces.

The Attorney General does not pass upon questions of fact.

Upon the facts as you have presented them to me, it cannot be said,
as a matter of law, that the mere statement of Dr. Grandmont to the
superintendent, that she was leaving to enter the Public Health Service
(a service from which she might be detailed to the Coast Guard) is in
itself evidence of a lack of intent to enter the naval forces at the time of
resignation sufficient to overcome the presumption arising by force of the
statute from her actual entry into such naval forces. It may well be that
at the time of resignation she knew that by prior arrangement she was to
enter the Coast Guard through the medium of induction into the Public
Health Service.

It follows that upon the facts of which you have informed me Dr.
Grandmont should be regarded as upon a leave of absence such as is men-
tioned in said section 1, commonly called a military leave.

Very truly yours,

Clarence A. Barnes, Attorney General.

Division of the Blind — Vocational Rehabilitation — Federal Funds.

.April 5, 1945.
Hon. Julius E. Warren, Coynmissioner of Education.

Dear Sir: — You have asked my opinion upon three questions in the
following communication:

"The Division of the Bhnd, Department of Education, is about to
embark upon a program for the blind which contemplates participation
in the benefits made available under Public Law 113, 78th- Congress, and
the rules and regulations promulgated thereunder.

Therefore, I respectfully request your opinion on the following questions
which relate to the conduct of the above-mentioned program.

1. Is the Division of the Blind, State Department of Education, au-
thorized to provide vocational rehabilitation for the adult blind?

2. If so, is said division authorized to expend state funds for this pur-

3. If so, may federal funds be received and expended as provided for
in the vocational rehabilitation act, amendments of 1943, and the regula-
tions issued pursuant thereunder."

1. "Vocational rehabilitation" is defined by Congress in the Vocational
Rehabilitation Act of June 2, 1920, as amended by Public Law 113 of the
78th Congress, to which you refer, as "any services necessary to render a

P.D. 12. 63

disabled individual fit to ongago in a rcmunorative occupation." The
words appear to be used in the same sense in G. L. (Ter. Ed.) c. 15, § 6A,
and I assume that they are so employed in your letter.

Although broad powers are given to the Director of the Blind to amelio-
rate the condition of the blind, authority to engage in "vocational reha-
bilitation" is not specifically conferred. Doubtless vocational rehabilita-
tion may be the result in some in.stances of the exercise by the division of
its power to ameliorate the condition of the l)lind, and since this is so
such incidental "vocational rehabilitation'' and the expenditui'e of funds
which make it possible are within the authority of the Division of the
Blind, so that I answer your first two questions in the affirmative.

2. It does not follow, however, that the Division of the Blind is author-
ized "to embark upon a program for the blind which contemplates par-
ticipation in the benefits made available under Public Law 113, 78th
Congress," as suggested in vour letter.

Public Law 113 of the 78th Congress (57 Stat., pt. 1, c. 190) amends
"An Act to provide for the promotion of vocational rehabilitation of per-
sons disabled in industrv or otherwise and their return to civil employ-
ment", approved June 2, 1920 (U. S. C, title 29, c. 4, §§ 31-45B) so as
to make the benefits of the act applicable to "war disabled civilians."

By the enactment of G. L. (Ter. Ed.) c. 15, § 6A, as amended, the
Legislature has created the State Board of Vocational Education and has
specifically empowered such Board to co-operate with a federal agency in
the administration of said Congressional act of June 2, 1920, and acts in
amendment thereof, of which acts in amendment said Public Law 113 is
one. The said Board is also authorized by said section 6A to expend "any
funds received by the state treasurer from the federal government under
the provisions of said act or acts" of Congress.

Moreover, by G. L. (Ter. Ed.) c. 74, § 22A, as amended, said State
Board is fully empowered to do all things necessary to carry out a broad
program for "vocational rehabilitation" of persons disabled in industry
or otherwise, with the use of federal funds, a progi'am which may embrace
specific training for the "vocational rehabilitation" of the blind.

Consequently, since the said Board has been so specifically authorized
to act in conjunction with the federal authorities in carrying out the
federal act as amended and to expend the money receivable under the
act, no authority, by implication or otherwise, is vested in the Division
of the Blind with respect to the administration of the federal act or the
expenditure of the funds paid to the State under it.
Very truly j'ours,

Clarence A. Barnes, Attorney General.

Constitutional Law — Rules and Regulations of State Departments — 7s/)-

croachment of Legislature upon Authority of the Executive Branch of

the Government.

April 13, 1945.

Hon. Charles F. Holman, Chairman, Legislative Committee on Depart-
mental Rules and Regidations.

Dear Sir: — You have asked my opinion on behalf of said committee
as to the constitutionality, if enacted into law, of a propos(>d measure,
entitled "An Act establishing a Joint Standing Committee of the General

04 P.D. 12.

Court to act with respect to rules and regulations of state departments,
commissions, boards and officials."

I am of the opinion that this proposed measure, if enacted into law,
would not be constitutional since it provides for the exercise by the legis-
lative department of the government of executive powers in contraven-
tion of the prohibitions of Article XXX of Part the First of the Constitu-
tion of the Commonwealth. Furthermore, the manner provided for the
establishment of the committee which is to administer the provisions of
the measure would appear to be in violation of Article LXVI of the Amend-
ments to the Constitution.

A proposed act similar in all material respects to the instant measure
was submitted in 1943 by the House Committee on Ways and Means to
the then Attorney General, and the latter, on May 26, 1943 (Attorney
General's Report for the year ending June 30, 1944, p. 51), rendered an
opinion to that committee to the effect that the proposed act would be
unconstitutional and set forth at length the reasons which induce a con-
clusion that such a measure is not constitutional. I am in accord with
that opinion.

Very truly yours,

Clarence A. Barnes, Attorney General.

Insurance — Dornestic Stock Liahility Insurance Company — Increase of
Capital — Commissioner's Approval.

April 16, 1945.
Hon. Charles F. J. Harrington, Commissioner of Insurance.

Dear Sir.* — In a recent communication you have written me that :

''A domestic stock liability insurance company which has voted to in-
crease its capital by a transfer from its surplus in the manner outlined in
G. L. c. 175, § 70, has forwarded to the Department within the prescribed
time the documents executed in connection with such proposed increase.

Previous to taking this vote the company's capital, surplus and liabili-
ties were as follows:

Capital $350,000.00

Surplus $400,000.00

Liabilities $2,135,626.02

The proposed stock dividend which is in the amount of $150,000 would
increase the company's capital to $500,000 and decrease its surplus to
$250,000 but would not change the total amount available for the protec-
tion of policyholders, although it would remove from the free surplus a
substantial sum which otherwise would be available in the future if ad- ,
verse circumstances were encountered." m

In connection with the foregoing facts you have asked my opinion on
two questions. Your first question reads:

"In taking action under section 70 is the Commissioner's duty merely
a ministerial act in which he is limited to ascertaining that the increase in
capital has been made in accordance with the certificate filed with him
within thirty days after the issuance of the new stock and which sets
forth the proceedings thereof and the amount of such increase and that

P.D. 12. 05

such certificate has been signed and sworn to by the president, secretary
and a majority of the directors of the company and also to passing upon the
form of the documents presented to him for approval?"

1. I answer your first question in the affirmative.

It is to be noted that the Legislature has enacted no requirement as to
the amount of surplus which such an insurance company as you refer to
must have nor established any provision as to any ratio which must be
maintained between the capital of such a company and its surplus or be-
tween surplus and outstanding liabilities.

As you have yourself pointed out in your letter, the proposed increase
in capital under consideration, although involving a change in the amount
of capital and surplus, respectively, does not change the total amount of
the company's capital and surplus available for the protection of policy-

G. L. (Ter. Ed.) c. 175, § 70, sets forth in some detail the two ways in
which a domestic stock insurance company may increase its capital and
the various steps which must be taken by a company to effect such in-
crease. (These ways were considered at length in an opinion of October
17, 1930, *by one of my predecessors in office, given to the then Com-
missioner of Insurance. Report of the Attorney General, 1930, p. 120.)
After setting forth specifically the steps necessary to be taken by a com-
pany to effect an increase of capital, said section 70 provides:

"In whichever mode the increase is made, the company shall, within
thirty days after the issue of such certificates, submit to the commissioner
a certificate setting forth the proceedings thereof and the amount of such
increase, signed and sworn to by its president and secretary and a majority
of its directors. If the commissioner finds that the increase is made in
conformity to law, he shall endorse his approval thereon ; and upon filing
such certificate so endorsed with the state secretary and the payment of a
fee of one twentieth of one per cent of the amount by which the capital
is increased for filing the same, the company may transact business upon
the capital as increased, and the commissioner shall, upon payment of the
fee prescribed by section fourteen, issue his certificate to that effect."

The phrase "if the commissioner finds that the increase is made in con-
formity to law, he shall endorse his approval thereon," as emplo3'-ed in
said section 70, does not indicate a legislative intent to vest the Commis-
sioner with discretion to determine the; amount of surplus which must be
available following an increase in capital, but merely to require him to
ascertain whether in making an increase in capital the company has
taken those steps and fulfilled those requirements which the Legisla-
ture has specified in said section 70 as necessary prerequisites to such
an increase.

The Commissioner is not authorized to withhold his approval to an
increase in capital, or the certificate that a company may transact business
upon such an increased capital, because of his own views as to the de-
sirability of such an increase.

Said section 70, in its. provision for an approval by the Commissioner of
Insurance of an increase in capital voted ])y a company, does not contain
a phrase such as is to be found in section 71 of said chapter 175, wherein^
with relation to the Commissioner's approval of a reduction of capital
stock it is provided:

66 P.D. 12.

"If the commissioner JBnds that the reduction is made in conformity to
law and that it ivill not he prejudicial to the public, he shall endorse his
approval thereon."

The general provisions of section 47 of said chapter 175, to which you
refer, which relate to examination of insurance companies and inspection
of their affairs, business meetings and dealings with their policyholders,
do not enlarge the scope of the particular authority to approve or dis-
approve an increase of capital stock given to the Commissioner by said
section 70, nor do the terms of section 72 of said chapter 175 have such an

Said section 70 specifically provides that "if the commissioner finds
that the increase is made in conformity to law, he shall endorse his ap-
proval thereon." "Shall" as so used is a mandatory word inconsistent
with the idea of discretion. The phraseology of section 70 requires that if
the Commissioner finds that the law specifically applicable to the ways and
manner in which a company may increase its capital has been complied
with, he "shall" endorse his approval and thereafter "shall" issue a
certificate. There is no suggestion in the language of the section that the
Commissioner may approve some increases of capital stock made in con-
formity with the particular provisions of said section 70, and reject others
so made, according to his own opinion as to desirability. See Elmer v.
Commissioner of Insurance, 304 Mass. 194, 196.

2. Your second question reads:

"Is it the duty of the Commissioner to make an inquiry into the general
financial condition of an insurance company proposing to increase its
capital under section 70 and may he use the discretion of a reasonably
prudent man in determining whether such action is in the interest of
policyholders and the public to approve or disapprove such increase?"

I answer this question in the negative for reasons which have been set
forth in my answef to your first question.
Very truly yours,

Clarence A. Barnes, Attorney General.

Insurance — Fraternal Benefit Society — Annual Meeting — Officers Holding
Over — Authority of Commissioner.

April 24, 1945.
Hon. Charles F. J. Harrington, Commissioner of Insurance.

Dear Sir: — You have written me with relation to the approaching
annual session of the High Court of the Massachusetts Catholic Order of
Foresters, an incorporated fraternal benefit society, and have informed
me that the Order is having difficulty in obtaining the necessary permis-
sion from the Federal "War Committee on Conventions" to hold such

You have directed my attention to Public Law 15, section 2, enacted by
Congress and signed by the President on March 9, 1945, which in its
applicable part reads :

"Section 2. (a) The business of insurance, and every person engaged
therein, shall be subject to the laws of the several States which relate to
the regulation or taxation of such business.

P.D. 12. 67

(6) No Act of Congress shall bo construed to invalidate, impair, or
supersede any law enacted by any State for the purpose of regulating the
business of insurance ..."

In this connection you have asked my opinion upon the two following
questions :

"1. In view of the requirement of the Society's Constitution and By-
Laws that the Annual Session of the High Court be held annually between
May 15 and May 31, may the Commissioner of Insurance order the
Society to hold said Annual Session?

2. Does section 2 of Public Law 15 signed on March 9, 1945, repeal or
supersede the Rules and Regulations of the Director of War Mobilization
and Reconversion governing the War Committee on Conventions thereby
rendering such Rules and Regulations inapplicable to the Business of In-
surance and persons engaged therein and placing the responsibility for the
supervision of the insurance business upon the supervisory officers of the
several states?"

1. I answer your first question in the negative.

The laws of the Commonwealth embodied in G. L. (Ter. Ed.) c. 176, as
amended, with relation to fraternal benefit societies, of which the Massachu-
setts Catholic Order of Foresters is one, do not empower you to order or
direct such societies to hold annual meetings. Said Public Law 15 does
not purport to enlarge the powers of the Commissioner of Insurance in the
various states, nor does it appear to have been the intent of Congress in
passing such law to increase the authority of those entrusted by the states
with the administration of the insurance laws.

2. I answer your second question in the negative.

The provisions of said section 2 of Public Law 15 do not repeal or super-
sede "the Rules and Regulations of the Director of War Mobilization and
Reconversion governing the War Committee on Conventions." Such
rules are of general application, as they affect the holding of conventions
and do not invalidate or impair state laws regulating insurance as such.

You have also asked third and fourth questions which read:

"3. Since the Constitution provides that officers shall be elected an-
nually and makes no provision for their continuance in office until their
successors are elected, will the officers be regarded as holding office legally
beyond the period for which they were elected?

4. Will the acts of the officers perfoi'med after the date of expiration of
the terms for which they were elected be legal and valid in every respect
without a proclamation by the Governor under his War Emergency
powers, or a special act of the Legislature?"

3. I answer both these questions to the effect that under the circum-
stances set forth in your letter, if officers of the Order cannot be elected
at the annual meeting, the present officers would, as a matter of law, like
public officers, be regarded as holding over until their successors are
chosen. The acts of such officers when so holding over as at least de facto
officers would be treated as valid as concerns the public and third persons
dealing with them and, since under the stated conditions no factional con-
troversy with relation to title to the offices would e.xist, as concerns the
Order and its members. Stratton Mass. Gold Mines Co. v. Davis, 222 Mass.
549, 553, 564. Thompson on Corporations, Vol. 2, §§ 1555, 1557, and
cases there cited.

68 P.D. 12.

You have also asked me four other questions relative to possible con-
tingencies which might arise in the future if the annual session of the
society in question is not held.

These questions relate to matters with regard to which you are not
presently required to perform any official duties, are based on speculation
as to possible future factual contingencies, and are hypothetical in char-
acter. Consequently, they are such as the Attorney General is not required
to answer. Attorney General's Report, 1935, p. 31; I Op. Atty. Gen. 273,
275; II Op. Atty. Gen. 100; III Op. Atty. Gen. 425.
\'ery truly yours,

CLARE^x'E A. Barnes, Attorney General.

Division of Fisheries and Game — Authority of -Officers to enforce Game
Laws on Public Lands including Area of Quahhin Reservoir.

April 26, 1945.

Hon. Raymond J. Kenney, Cojnmissioner of Conservation.

Dear Sir: — You have asked my opinion as to the extent of the author-
ity of officers of the Division of Fisheries and Game to enforce the game
laws on land of the Commonwealth in the Quabbin Reservoir area, in
view of the provisions of G. L. (Ter. Ed.) c. 131, §§ 4, 18 and 89, as
amended, and of St. 1941, c. 599, § 5A.

All lands and waters acquired for the purposes of the Quabbin Reser-
voir and the water supply needs of the Metropolitan Water District in
connection therewith are maintained and operated and under the control
of the Metropolitan District Commission (St. 1926, c. 375, § 1, St. 1927,
c. 321, § 2) and constitute "land or waters of said commission," as the
quoted words are used in St. 1941, c. 599, § 5A, and said Commission has
"the control and charge" of such land within the meaning of G. L. (Ter.
Ed.) c. 131, § 89, as amended by said St. 1941, c. 599.

The various provisions of said G. L. (Ter. Ed.) c. 131, as amended, and
of the amending act, said St. 1941, c. 599, are to be read together so as to
form as far as possible an harm.onious whole, in accordance with the estab-
lished rule of statutorv construction {Piatt v. Conimonwealth, 256 Mass.
539, 542; Moloney v. Selectmen of Milford, 253 Mass. 400, 402).

Section 18 of said chapter 131, as amended, in its pertinent portion,
reads :

"The director (of the Division of Fisheries and Game), conservation
officers, deputies, wardens and members of the state police shall enforce
the laws relating to fish, birds and mammals."

Section 4 of said chapter 131, to which you refer, empowers such officers
to enter upon private lands in the performance of their duties. This sec-
tion has no direct apphcability to public lands and no specific provision
in the statute was necessary to authorize public officers to enter upon
state lands; such authority being implicit in the grant of power to them
in said section 18 to enforce the game laws. Nor is such authority cur-
tailed by the terms of said section 5 A in the amending act of 1941, chapter
599, which, with reference to the amended provisions of said chapter 131
therein contained as well as to certain other provisions, provides as
follows :

P.D. 12. 60

"Nothing in this act shall be construed as authorizing any person,
without a permit from the metropolitan district commission, to enter or
go upon the land of the water division of said commission ..."

"Person" by itself is an equivocal word. It has no fi.xed and rigid
signification, but has different meanings dependent upon contemporary
conditions, the connection in which it is used, and the result to be accom-
plished. See Commonwealth v. Welosky, 276 Mass. 398, 404, 406.

The word "person" in the quoted phrase is not to be construed as em-
bracing public officers charged with the enforcement of the laws of the
Commonwealth as are those officers of the Department of Conservation
named in said section 18 of chapter 131 whose power of enforcement is
further implcunented, though not enlarged, by section 6A of G. L. (Ter. Ed. j
c. 21, inserted by St. 1941, c. 599, § 3, providing:

"There shall be in the division a bureau of law enforcement, under the
charge of a chief conservation officer. All conservation officers, deputy-
conservation officers and fish and game wardens of the division shall be
assigned to duty in said bureau. The director shall, subject to the provi-
sions of section three, enforce chapter one hundred and thirty-one and all
other provisions of law relative to inland fisheries, birds and mammals and
in the enforcement thereof may act through said bureau. The director
shall, subject to the provisions of section three, have general supervision
of all such enforcement officers."

The provisions of said section 5 A of chapter 599, accordingly, do not
bar the said officers of the Department of Conservation from entering
upon the said lands under the control of the Metropolitan District* Com-
mission for the purpose of performing their duties to enforce the game laws.

Section 89 of said chapter 131, in its material part reads:

"No person shall hunt, or in any manner molest or destroy, any bird or
mammal within the boundaries of any state reservation, park, common,
or any land owned or leased by the commonwealth or any political sub-
division thereof, or any land held in trust for public use, except that the
authorities or persons having the control and charge of such reservations,
parks, commons or other lands ma}^, with such limitations as they may
deem advisable, authorize persons to hunt within said boundaries any of
the unprotected birds named in section fifty-three, or the fur-bearing
mammals mentioned in section sixty-eight, or fo.xes, weasels or wildcats.
Such an authorization shall be by written license, revocable at the pleasure
of the authority or person granting it. The boards, officials and persons
having control and charge of such reservations, parks, comm.ons or lands
owned or leased or held for public use shall enforce this section."

Said section 18, already referred to, empowers- and directs designated
officers of the Division of Fisheries and Game to "enforce the laws relating
to fish, birds and mammals." Said section 18 stems directly, through
various re-enactments of the game laws, from R. L., c. 91, § 4, which author-

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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 8 of 10)