Brattin v. Comm'r of Civil Serv.

• Citation: 249 Mass. 170,143 N.E. 822
• Parties: BRATTIN v. COMMISSIONER OF CIVIL SERVICE et al.
• Decision Date: 22 May 1924
• Court: United States State Supreme Judicial Court of Massachusetts

249 Mass. 170

143 N.E. 822

BRATTIN

v.COMMISSIONER OF CIVIL SERVICE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1924.

Exceptions from Supreme Judicial Court, Suffolk County.

Petition for writ of mandamus by John A. Brattin against the Commissioner of Civil Service of the Commonwealth of Massachusetts, Payson Dana, and the Associate Commissioners. The petition was dismissed, and petitioner brings exceptions. Exceptions overruled, and order dismissing petition affirmed.

C. W. Crooker, of Boston, for petitioner.

A. C. York, Asst. Atty. Gen., for respondents.

CROSBY, J.

This is a petition for a writ of mandamus against the respondents as members of the board of civil service commissioners to compel the respondent Dana, as commissioner, to certify the name of the petitioner for appointment to police service in the city of Boston as of January 12, 1920, and to compel the respondent board to take such action as may be necessary to continue further the name of the petitioner upon the list of persons eligible for such certification. The case was heard by a single justice of this court who thereafter entered the following order:

‘In the above-entitled case it is ordered that the petition be, and the same is hereby dismissed.’

To this order the petitioner excepted.

The pertinent facts are as follows: At the time of the Boston police strike, so called, in September, 1919, the petitioner was a member of the police department of the city of Boston. He then, with other members of that department, left his position, and it thereafter became vacant. At some time before January 12, 1920, he filed a new application with the civil service commission, and took, and successfully passed, the required examination; and on the last-named date his name was placed on the Boston police eligible list. By letter dated January 15, 1920, he was notified by the board that his name would not be certified for appointment for police service in Boston ‘in view of the fact that you left your position when you were a member of the police department of the city of Boston. This action is taken under section 3 of civil service rule 9.’ It further appears that on October 25, 1921, the commission placed the petitioner's name on the eligible list for appointment to the police departments of Cambridge, Brookline, and Newton, but as he was not appointed a member of any of those departments, his eligibility therefor expired under the civil service rules on January 12, 1922.

It has often been held that mandamus is not a writ of right, but is addressed to sound judicial discretion. The decision of the single jsutice in refusing to issue the writ cannot be reversed by this court. Attorney General v. Boston, 123 Mass. 460, 474;McCarthy v. Street Commissioners, 188 Mass. 338, 340, 74 N. E. 659;Smith v. Commissioner of Public Works of Boston, 215 Mass. 353, 102 N. E. 362.

No exception lies to a decision which is based upon judicial discretion. Commonwealth v. National Contracting Co., 201 Mass. 248, 87 N....