Brown v. Russell
| Decision Date | 25 April 1896 |
| Citation | 43 N.E. 1005,166 Mass. 14 |
| Parties | BROWN v. RUSSELL et al., Civil Service Com'rs. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.B. Warner and J.J. Feeley, for plaintiff.
H.M Knowlton, Atty. Gen., and G.C. Travis, Asst. Atty. Gen., for defendants.
In determining the principal question in this case, it is necessary to consider the statutes relating to the civil service, and particularly St.1895, c. 501. The previous statutes on the subject are St.1884, c. 320; St.1887, c. 437; St.1889, c. 352; Id. c. 473; St.1891, c. 140; St.1893, c. 95; Id. c. 253; St.1894, c. 267; and St.1895, c. 376. The justices of this court heretofore have had occasion to consider some of these statutes, in an opinion given to the house of representatives on February 24 1885, and in one given to the governor and council on September 22, 1887. See Opinion of the Justices, 138 Mass. 601; Id., 145 Mass. 587, 13 N.E. 15.
By St.1884, c. 320, § 2, the civil service commissioners to be appointed under the act were authorized to prepare rules not inconsistent with existing laws or with the provisions of the act, and adapted to carry out the purposes thereof, for the selection of persons to fill certain offices in the government of the commonwealth, and of the several cities thereof, which are required to be filled by appointment, and for the selection of persons to be employed as laborers or otherwise in the service of the commonwealth and of the several cities thereof, and the rules were made subject to the approval of the governor and council; and by section 14 the rules were to be given a general or limited application. The commissioners have prepared rules with reference to what is called the "official service of the commonwealth," and of the several cities thereof, and with reference to the labor service, and these rules have been approved by the governor and council. Under the classification of the services made by the rules, there are included in the first division, Schedule A, clerks and other persons rendering service as copyists, etc., and, in Schedule B, persons employed in the prison, police, and fire departments, and some other offices. The second division includes the labor service. Section 15, St.1884, as amended by St.1893, c. 95, describes the offices which, under existing laws, cannot be made subject to the civil service rules. It is obvious that the civil service statutes and rules relate only to subordinate offices and employments which have been created by the legislature. None of them is an office or employment of which the duties, tenure, or qualifications are prescribed by the constitution.
In the present case the petitioner is not a veteran, and, after examination, was placed at the head of the list of candidates eligible for certification and appointment to a position on the detective force of the district police of the commonwealth; and he remained at the head of the list until July, 1895, when the commissioners placed one Edward D. Bean at the head of the list, and reduced the petitioner to the second place. Bean had made application as a veteran, under St.1895, c. 501, § 2, and, having been found to be a veteran was, without examination, placed first upon the list; and, so far as appears, he is the only veteran on the list. The district police are appointed by the governor of the commonwealth, and are subject to removal by the governor. Pub.St. c. 103, § 1. If the governor makes requisition upon the commissioners for a candidate for appointment to the office of a detective upon this police force, it is made the duty of the commissioners, by St.1895, to certify the name of Edward D. Bean for appointment, and of the governor to appoint him, if he appoints anybody. The governor, perhaps, may refuse to appoint anybody, if he is of opinion that Bean is not qualified to perform the duties of a detective on this force, or he may wait until more veterans than one are on the list of persons eligible to such an appointment, and make his selection from them, or he may appoint Bean, and remove him if he finds him incompetent. But then, if Bean is continued on the list, and is the only veteran on it, or, if his application is considered as exhausted by one certification, and he makes a new application, the statutes, literally construed, make it the duty of the commissioners to put his name again at the head of the list for appointment, and, on requisition by the governor, again to certify him for appointment, and so on, toties quoties, so long as he remains on the list.
It is to be noticed that the class of veterans as defined by the statutes is not a class which anybody can become qualified to enter by any services which he may perform, or by any attainments which he may acquire, but it is a class fixed and determined by services which were rendered a long time before any of the statutes were passed. It is also to be noticed that the fact of having been a veteran, within the meaning of the statute, in and of itself, has little tendency to show that the applicant is specially qualified to perform the duties of many of the offices to which the civil service statutes and rules relate. The principal purpose of exempting veterans from submitting to an examination must be that veterans sometimes may be appointed to an office or employment who would be found, on examination, not qualified to perform the duties of the office or employment which they seek. One, and perhaps the chief, purpose of the exemption must be to reward veterans for their services in the war of the Rebellion. The reward is not in the nature of a pension or payment of money, but of an office or employment, the salary or pay of which the veteran is to receive. The provisions of the statutes exempting veterans are general in their nature, and relate to all the offices or employments that have been, or may be, included within the civil service rules. From the earliest times, most nations have conferred honors and emoluments upon those persons who have rendered distinguished services to the state, particularly in war. These honors and emoluments have been conferred upon persons voluntarily selected by the legislative body or the sovereign power; and pensions and rewards sometimes have been given to whole classes of persons, of which the statutes of the commonwealth relating to the "aid to soldiers and sailors and to their families," and the statutes of the United States relating to pensions, are well known examples. But the statute of 1895, under consideration, affords the first instance, so far as we know, in this commonwealth, where the appointing power has been compelled to appoint persons of a certain class to office, in preference to all other persons, whether they are or are not thought to be qualified for the office by the appointing power, or by some public officer, or some impartial and disinterested board of officers or persons invested by law with the power and responsibility of determining the qualifications of the persons to be appointed.
The legislature, in establishing offices not provided for by the constitution, has often required that the persons, or some of the persons, to be appointed, shall possess certain qualifications, or that some of them shall be women, and some men; but in all cases, so far as we are aware, the qualifications required bear such a relation to the duties imposed that they tend to secure that kind and degree of knowledge, experience, and impartiality which are requisite for the satisfactory performance of the duties, and it is open to any person to acquire the qualifications required. When women are to be appointed, there is a satisfactory reason, in the nature of the office or employment, why this should be done. In every such case some discretion usually has been left to the appointing power, in the selection of the particular persons to be appointed. The peculiarity of the civil service statutes and rules, if St.1895, c. 501, §§ 2, 6, be enforced, is that very little is left to the discretion of the appointing power in the selection of persons, if there are veterans who wish to be appointed. The civil service commissioners, in making up the list, and in certifying the persons to be appointed, must proceed in a certain way, designated by the statutes and the rules; and the appointments must be made, if at all, from the persons so certified. Before the passage of St.1895, c. 501, it was in the discretion of the appointing power whether veterans who had been put upon any list without an examination, pursuant to St.1887, c. 437, should or should not be certified for appointment by the commissioners; and it was also in the discretion of the appointing power whether, if such veterans were certified, they should be appointed. But if veterans make application, under St.1895, c. 501, § 2, they are to be preferred "for certification and appointment in preference to all other applicants not veterans, except women"; and, as separate lists are made up for the different offices and employments, appointments from each list must be made from veterans, if any man is appointed, and there are veterans on the list.
It ought, perhaps, to be considered whether it is intended that veterans who make application for employment in the service under St.1895, c. 501, §§ 2, 6, shall not only file a petition in accordance with section 6, but shall also conform in their application to the requirements of the second section of rule 12 of the civil service rules, pursuant to section 2. We are of the opinion that it was the intention of the statute that the application, under this statute, of a veteran who does not wish to submit to an examination, should be made in accordance with the requirements of both the second section...
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