DiRado v. Civil Service Commission

Citation224 N.E.2d 193,352 Mass. 130
PartiesGene A. DiRADO v. CIVIL SERVICE COMMISSION (and a companion case 1 ).
Decision Date02 March 1967
CourtUnited States State Supreme Judicial Court of Massachusetts

Charles F. Mahoney, Boston, and Thomas J. Wilgren, Belmont, for petitioners.

Howard M. Miller, Sp. Asst. Atty. Gen., for respondent.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

KIRK, Justice.

In each case the petitioner appeals the dismissal in the Superior Court of his petition for a writ of certiorari seeking to quash the decision of the Civil Service Commission which (a) cancelled the examination he had taken for the position of artist in the Department of Public Works of the Commonwealth and (b) requested the Director of Civil Service to hold a new examination for the position.

We first consider the DiRado petition. The Commission's return shows that seventy-two applicants took the examination which was held at different places in the Commonwealth of April 27, 1963. The examination consisted of ten practical questions involving design, sketching or drawing. The time allowed was four hours. Nine applicants, including DiRado, passed the examination. Four applicants, including DiRado, requested the Director of Civil Service, pursuant to G.L. c. 31, § 12A, to review their markings on experience or specified practical questions, or both. Thereafter three of the four applicants, including DiRado, seasonably appealed from the Director's decision to the Commission under G.L. c. 31, § 12A. The three appeals were heard by all five members of the Commission (G.L. c. 13, § 1), on November 6, 1963.

After hearing the testimony on the three appeals the Commission unanimously voted to cancel the examination and to request the Director to hold a new examination for the position. The Commission gave notice of its decision to those affected by it. Upon receipt of the Commission's decision cancelling the examination DiRado requested reconsideration. A hearing was held on January 13, 1964; reconsideration was denied on February 5, 1964. The present petition by DiRado followed. DiRado's contentions are that (a) the Commission, in violation of G.L. c. 31, § 12A, failed to hear and decide the appeal before it, and (b) the Commission's decision cancelling the examination was in violation of G.L. c. 31, §§ 2, 10.

DiRado's contention, as we understand him, is that the subject of his appeal to the Commission was the markings on designated examination questions and that the Commission's authority extended only to a review of these markings. We do not agree. General Laws c. 31, § 12A, as appearing in St.1948, c. 297, states that an applicant may appeal a decision of the Director with respect to markings 'to the commission by filing a petition in a form approved by it and containing a brief statement of the facts upon which such appeal is based.' The statements of facts relied upon by DiRado and the other applicants in their petitions to the Commission are not before us. The Commission's return, however, shows that the substance of the testimony in support of all three appeals to the Commission was that some applicants had the advantage of using certain drawing aids which they had brought to the examination, whereas the appealing applicants had not brought aids with them because the notice of the examination gave no indication that their use would be permitted. More specifically, the only evidence on DiRado's appeal were statements by DiRado and his spokesman that the time allowed for completing the examination was, for DiRado, insufficient because he, unlike some others who took the examination with him in Worcester, did not have the advantage of using a triangle, T-square or straight edge. The testimony of a second applicant, who took the examination at a school in Boston, was substantially the same as DiRado's, with the additional statement that 'better than fifty percent' of the applicants used mechanical aids. The second applicant's counsel argued to the Commission 'that this examination was not a proper exam.' A third applicant, who took the examination at a different school in Boston, testified that he was not appealing on all the questions but 'just on the exam in general'; that although he finished in time, he did not bring to the examination the aids and materials which others used, including colors, because his notice sheet was a blank paper.

The Commission's return shows no other evidence. There was no motion to extend the return. See Albano v. Selectmen of So. Hadley, 341 Mass. 494, 170 N.E.2d 685, and cases cited. The return must be accepted as true concerning all matters within the Commission's jurisdiction. Newcomb v. Board of Aldermen of Holyoke, 271 Mass. 565, 567, 171 N.E. 826. We conclude, therefore, that although the appeals, in form, may have requested that the markings on designated examination questions be reviewed, their purpose, in fact and in substance, was to have the...

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6 cases
  • Stetson v. Board of Selectmen of Carlisle
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 25, 1976
    ...Comm'n, 312 Mass. 121, 124--125, 43 N.E.2d 385 (1942)), unless there was an extension of the return (see Dirado v. Civil Serv. Comm'n, 352 Mass. 130, 132--133, 224 N.E.2d 193 (1967)), a challenge to the tribunal's jurisdiction (see Morrissey v. State Ballot Law Comm'n, 312 Mass. 121, 124--1......
  • Selectmen of Sterling v. Governor
    • United States
    • Appeals Court of Massachusetts
    • October 9, 1974
    ...return. Attorney Gen. v. Board of Pub. Welfare of Wilmington, 328 Mass. 468, 471, 104 N.E.2d 496 (1952). DiRado v. Civil Serv. Commn., 352 Mass. 130, 132, 224 N.E.2d 193 (1967). See Southwick Birds & Animals, Inc. v. County Commrs. of Worcester County, --- Mass. ---, n. 1, b 273 N.E.2d 581 ......
  • Goldblatt v. Corporation Counsel of Boston
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 17, 1971
    ...See School Committee of Salem v. Civil Serv. Commn., 348 Mass. 696, 697--698, 205 N.E.2d 707. See also DiRado v. Civil Serv. Commn., 352 Mass. 130, 132--135, 224 N.E.2d 193. This is not a case where an appeal lies within G.L. c. 31, § 45 (as amended through St.1955, c. 407, § 2; see later a......
  • Davidson v. Board of Selectmen of Duxbury
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 1, 1970
    ...v. City of Newton, 247 Mass. 46, 53, 141 N.E. 658; Marcus v. Street Com'rs, 252 Mass. 331, 335, 147 N.E. 866; DiRado v. Civil Serv. Comm., 352 Mass. 130, 132--133, 224 N.E.2d 193. On the facts shown by the return, which are not contradicted by the facts stipulated, the selectmen's action ca......
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