Attorney Gen. ex rel. Civil Serv. Com'rs v. Mayor, Etc., of the City of Northampton.

• Decision Date: 23 February 1887
• Citation: 143 Mass. 589,10 N.E. 450
• Parties: ATTORNEY GENERAL ex rel. CIVIL SERVICE COM'RS v. MAYOR, ETC., OF THE CITY OF NORTHAMPTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 589

10 N.E. 450

ATTORNEY GENERAL ex rel. CIVIL SERVICE COM'RS

v.MAYOR, ETC., OF THE CITY OF NORTHAMPTON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 23, 1887.

Information by the attorney general, at the relation of the civil service commissioners, against the mayor and aldermen of the city of Northampton. The information set forth that the said commissioners were required by Acts 1884, c. 320, § 2, to prepare rules, subject to the approval of the governor and council, for the selection of persons to fill offices in the government of the commonwealth, and of the several cities thereof, which are required to be filled by appointment; and by section 14 of said rules were required to provide, “among other things”-“Sixth, for giving preference, in appointments to office, (other qualifications being equal,) to applicants who served in the army or navy of the United States in time of war, and have been honorably discharged therefrom;” that rules were prepared by said commissioners in accordance with the provisions of said act, and approved by the governor and council, and went into effect on March 30, 1885; that a certified copy of said rules was sent to defendant Benjamin E. Cook, Jr., then, and at the time of filing the information, the mayor of Northampton, before said March 30th; that said rules provide, among other things, (rule 19, cl. 6,) that “persons who have served in the army or navy of the United States in time of war, and been honorably discharged therefrom, shall be preferred for appointment in the civil service over other persons of equal qualifications as ascertained under these rules,” etc. The information then further set forth that on January 30, 1886, a requisition was made by the defendant Cook upon the civil service examiners of said city for the names of three eligible applicants for the police service standing highest on the register; that the civil service commissioners then certified the three names from the register of persons eligible to such position, and of these thus certified the person having the highest general standing was one Luther A. Clark, who had served in the army of the United States in time of war, and received an honorable discharge therefrom, which fact was duly certified, and who was therefore entitled to the preference in appointment to office required by law; that on February 8, 1886, the said mayor nominated to the board of aldermen of said city, for appointment as a police officer, the said Clark, informing the said board, at the same time, that he, said Clark, had served in the army in time of war, and that the civil service law required that he should be named first for the appointment; that said board voted not to confirm the said nomination, and the said mayor then nominated for appointment as police officer one George D. Briscoll, who had not served in the army or navy of the United States in time of war, and whose general standing among the persons certified was lower than that of said Clark. The nomination of said Briscoll was confirmed by the board of aldermen, and he was sworn in and entered upon the discharge of his duties as a police officer of said city. The information then represented that the appointment of said Briscoll was illegal and void as being in violation of said chapter 320 of the Acts of 1884, and of the rules made in pursuance thereof, and that, if any appointment was made, the said Clark was absolutely entitled to preference in the appointment to said office. The prayer of the information was that a writ of certiorari might issue to the said mayor and aldermen of the city of Northampton, requiring them to certify to the court their doings in the matter of the appointment of George D. Briscoll, as a police officer of said city, and that the same, when so certified, might be quashed. Hearing in the supreme court before W. ALLEN, J., who reserved the case for the determination of the full court.E.J. Sherman, Atty. Gen., and H.N. Shepard, Asst. Atty. Gen., for the Commonwealth, cited Holbrook v. Holbrook, 1 Pick. 248;Com. v. Kimball, 24 Pick. 366;Cleaveland v. Norton, 6 Cush. 380; 13 Ops. Attys. Gen. 516; State v. Kennon, 7 Ohio St. 546;People v. Hurlbut, 24 Mich. 44;People v. Clute, 50 N.Y. 451; Pub.St.Mass. c. 186, § 7; Com. v. Middlesex, 9 Mass. 388; Groenvelt's Case, 1 Ld.Raym. 454; Lawton v. Commissioners Highways, 2 Caines, 182; Wood v. Peake, 8 Johns. 54; Wildy v. Washburn, 16 Johns. 49;Parks v. Boston, 8 Pick. 217.

T.G. Spaulding, for defendant.

The certificate of the examiners was not conclusive as to Clark's “other qualifications,” and did not absolutely entitle him to preference in the appointment to the vacancy on the police force of Northampton. See Acts 1883, c. 250, § 13. See Opinion of Justices, 138 Mass. 603. See Acts 1884, c. 320, § 2. See Second Annual Report Civil Service Com'rs, rule 21; Id. rules 8, 11, 16, 10, 11, 16, cl. 6; Acts 1884, c. 320, § 3. The preference given by Acts 1884, c. 320, § 14, cl. 6, is not absolute, but contingent on...