Hayes v. Commissioner of Civil Service

• Decision Date: 16 September 1935
• Citation: 197 N.E. 471,292 Mass. 109
• Parties: HAYES v. COMMISSIONER OF CIVIL SERVICE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 109

197 N.E. 471

HAYES v. COMMISSIONER OF CIVIL SERVICE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 16, 1935

Report from Supreme Judicial Court, Suffolk County.

Petition for a writ of mandamus by John A. Hayes to be directed to James M. Hurley, Commissioner of Civil Service and others. Petition was denied as a matter of law by a single justice, and the case was reported by him to the Supreme Judicial Court.

Petition dismissed.

A. S Allen, of Boston, for petitioner.

C. F Lovejoy, Asst. Atty. Gen., for respondents Hurley and others.

E. A. Counihan, Jr., of Boston, for respondent Curry.

RUGG Chief Justice.

This is a petition for a writ of mandamus brought against James M. Hurley, the commissioner of civil service and his two associates, Merton L. Brown, the commissioner of insurance, and James E. Curry whose name was among the three names certified by the commissioner of civil service to the commissioner of insurance and who by the latter upon such certification was appointed to the position of insurance attorney. The prayers of the petition are that the certification of names be revoked, that a new certification of names be made including the name of the petitioner and that the appointment of Curry be revoked. The case was heard upon the petition, the answers and an agreed statement of facts, by a single justice who found that there was no bad faith on the part of any of the respondents, denied the petition as matter of law, and at the request of the petitioner reported the case for the determination of the full court.

The petitioner is conceded to be a disabled veteran having suffered the amputation of his left leg by reason of service in the Great War; the respondent Curry is a veteran but not disabled. G. L. (Ter. Ed.) c. 31, § 23. The other facts, all of which occurred in 1934, so far as material are as follows On March 10 a written examination for the position of insurance attorney was held. The announcement for this examination stated that the physical fitness was to be determined by physical examination. The petitioner and others passed this written examination. Curry received the highest mark and the petitioner stood fourth. On April 24, the several applicants underwent a physical examination conducted by the civil service commissioners which was ordered under Rule 11(1) of the Civil Service Rules providing that that board may order such examination if in its opinion physical qualifications are necessary or desirable for any particular office or position. On May 9 the civil service commissioners voted to disqualify the petitioner because of physical disabilities. On June 5 the petitioner received a notice that he had failed to pass the physical examination because of the amputation of his left leg and that therefore his name could not be placed on the eligible list. On the same day the petitioner filed an appeal, so called, from the decision disqualifying him because of his failure to pass the physical examination on the ground that his disability did not impair the efficient performance of his duties in the position sought. On June 6 the respondent Hurley certified from the eligible list to the commissioner of insurance the names of the three men standing highest on the list, the name of Curry being first, and the name of the petitioner not being included. On June 13 the petitioner had a hearing before the civil service commissioners, as a result of which they voted to allow him to pass the physical examination held on April 24 and to grant him the preference of a disabled veteran in connection with the examination for insurance attorney. On June 14 notice of this action was sent to the petitioner. On June 20, being the last day on which appointment to the office of insurance attorney could be made under the certification of June 6, the insurance commissioner appointed Curry to that office. On June 21 formal notice was sent to the petitioner by the respondent Hurley that his name had been placed upon the eligible list for appointment as insurance attorney. On that date the petitioner learned of the appointment of Curry. On June 22 the petitioner requested the respondent Hurley to revoke the certification of the three names previously made and to revoke the appointment of Curry. This request was refused. From this refusal the petitioner appealed on June 25 to the civil service commissioners and requested that his name be certified to the respondent Brown. On July 3 this appeal was heard and on July 7 the petitioner was notified that the civil service commissioners had voted to make no change in the previous action in the...