Number 8. July 19, 1967

Number 8. July 19, 1967. Honorable John A. Gavin, Commissioner of Correction Dear Commissioner Gavin: — In a recent letter you have asked my opinion "as to whether the Commissioner of Correction has the authority un- der [G. L.] Chapter 127, Section 97 to transfer a prisoner from another Massachusetts Correctional Institution to the State Hospital section of the Massachusetts Correctional Institution, Bridgewater." Chapter 127, § 97 provides in pertinent part: "The commissioner [of correction] may transfer any prisoner from one correctional institution of the commonwealth to another . . .; provided that no person sentenced to the state prison . . . shall be so removed to any other institution except the Massachu- setts Correctional Institution, Walpole, the Massachusetts Correc- tional Institution, Concord, or the Massachusetts Correctional In- stitution, Bridgewater, except with the approval of the governor and council." In view of a provision in G. L. c. 125, i^ 18 that "The Bridgewater state hospital shall be part of the Massachusetts Correctional Institution, Bridge- water [,]" the foregoing language might, by itself, seem to permit you to transfer prisoners to the Hospital there as well. Yet, after careful considera- tion, I am of the opinion that your authority does not reach that far. I be- lieve that transfers to the Hospital are governed by G. L. c. I 23, §§ 102 and 103, and require the issuance of a warrant by the Superior Court. General Laws c. 123, §§ 102 and 103 provide: "House Bill No. 1704 of 1956, which originated the 1956 amendments, also used the phrase "under the care and control of in relation to the enumerated departments. This was changed to "under." 48 P.D. 12 § 102. "The department [of mental health] shall designate two persons, experts in insanity, to examine prisoners in the correc- tional institutions of the commonwealth, alleged to be insane. If any such prisoner appears to be insane or in such mental condi- tion that his commitment to an institution for the insane is neces- sary for his proper care or observation pending the determination of his insanity, the warden or superintendent shall notify one or both of said experts, who shall, with the physician of such penal institution, examine the prisoner and report the result of their in- vestigation to the superior court for the county where such penal institution is situated." § 103. "The superior court upon a report under the preceding section, if it considers the prisoner to be insane or in such mental condition that his commitment to an institution for the insane is necessary for his proper care or observation pending the determi- nation of his insanity, and his removal expedient, shall issue a warrant, directed to the warden or superintendent, authorizing him to cause the prisoner, if a male, to be removed to the Bridge- water state hospital, and, if a female, to be removed to one of the state hospitals for the insane, subject to the provisions of section one hundred and five." Past practice seems to have relied on these provisions as the basis of the transfer of prisoners to the Hospital, despite the existence of provisions cor- responding to the present G. L. c. 125, § 18 (relative to the Hospital being a part of the Correctional Institution) and the present G. L. c. 127, § 97 (relative to the Commissioner's authority over prisoner transfers). Com- monwealth V. Sacco, 255 Mass. 369, 408. This practice reflects a recogni- tion of the well-settled rule that a statute directed specifically to a particular subject (in this case, the transfer of persons to mental hospitals, of which the Hospital at Bridgewater is one) will prevail over a general statute not fo- cused thereon; and it reflects also a construction that makes the statutes con- cerning your authority, on the one hand, and the jurisdiction of the Superior Court, on the other, parts of a harmonious and consistent body of legisla- tion. My opinion that the Legislature intended the Superior Court warrant procedure to control the transfer of prisoners to the Hospital finds confir- mation in legislation enacted in 1955 which made numerous changes in the correctional system of the Commonwealth but continued in force both the Commissioner's authority to transfer prisoners under G. L. c. I 27, § 97 and the Superior Court warrant procedure under G. L. c. II I, § 102. St. 1955, c. 770, §§ 5 and 58. Such an affirmation of the viability of both procedures indicates that neigher of them was regarded as superseded by the other, and that each was intended to operate in its pre-existing sphere of jurisdiction. I therefore conclude that transfers of a prisoner from a correctional insti- tution of the Commonwealth to the State Hospital at Bridgewater can be ef- fected only in accordance with the provisions of G. L. c. 123, §§ 102 and 103, and that G. L. c. 127, § 97 does not authorize the Commissioner of Correction to make such a transfer himself. Very truly yours, Elliot L. Richardson, Attorney General P.D. 12 49