McNamara v. Director of Civil Service

• Decision Date: 27 February 1953
• Citation: 110 N.E.2d 840,330 Mass. 22
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: McNAMARA et al. v. DIRECTOR OF CIVIL SERVICE et al. WILSON v. DIRECTOR OF CIVIL SERVICE et al.

Page 840

110 N.E.2d 840

330 Mass. 22

McNAMARA et al. v. DIRECTOR OF CIVIL SERVICE et al.

WILSON v. DIRECTOR OF CIVIL SERVICE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 5, 1952.

Decided Feb. 27, 1953.

Reuben Goodman, Cambridge, for petitioners.

Henry P. Fielding, Asst. Atty. Gen., for respondents.

Before QUA, C. J., and LUMMUS, SPALDING, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

These are two petitions for writs of certiorari brought respectively by nonveteran lieutenants in the fire department of the city of Boston and by a nonveteran lieutenant in the police department to quash rulings of the respondent director, sustained by the respondent commissioners of the civil service commission, whereby in accordance with paragraph 2 of civil service Rule 21 the director has added or will add 'two points to the general average mark obtained by any veteran' at competitive promotional examinations which the petitioners have taken or may hereafter take for the position of captain in their respective services. The petitioners insist that the rule is invalid.

The cases are here by report of a single justice of this court. The facts are to be ascertained from the returns of the respondents. Morrissey v. State Ballot Law Commission, 312 Mass. 121, 124-127, 43 N.E.2d 385. The petitioners contend that the returns adopt as proved facts the statements made in sworn petitions addressed by the petitioners to the director. We do not so construe the returns. The returns contain their own findings of fact which we must accept as the bases of the commission's decisions. We may add, however, that the result of this opinion would be the same if all direct statements of pure fact contained in the petitions were also accepted as correct. Statements in the petitions consisting of argumentive conclusions are incorporated in the arguments in the petitioners' brief and are considered in that connection.

The crucial facts appearing from the returns are in substance these: The second paragraph of Rule 21, with which we are here concerned, reads as follows, 'In competitive examinations for promotion to any position in the Classified Official Service the Director shall add two points to the general average mark obtained by any veteran * * * providing such veteran has first obtained a passing mark in said examination.' As the result of a promotional examination for the position of captain in the fire department held in August, 1949, the three petitioners in the first case stood upon the eligible list in the order of thirty-one, thirty-two and thirty-three. The list contained names of veterans and of nonveterans. If it had not been for the two point preference to veterans required by Rule 21 these petitioners would have stood upon the list in the order of thirteen, fourteen and fifteen. Before the list expired by operation of law, G.L. (Ter.Ed.) c. 31, § 12, second paragraph, as amended by St.1951, c. 27, twenty-three promotions to captaincies were made from it. Apparently therefore, if it had not been for Rule 21, the three petitioners in the first case would in ordinary course have been certified for promotion. As a result of a promotional examination for the position of captain in the police department held in December, 1949, the petitioner in the second case stood as number fifteen on the eligible list. This list also contained names of veterans and of nonveterans. If it had not been for the two point preference to veterans the petitioner would have stood as number ten. During the two year life of that list four promotions to captaincies were made from it. Apparently this petitioner would not in ordinary course have been certified, even if there had been no two point preference to veterans.

All petitioners assert that the practical effect of Rule 21 has been and will continue to be to push them and other nonveterans so far down on successive lists of eligibles that practically all chance of promotion is permanently denied to them. We cannot fully accept this assertion, since names of nonveterans may and in fact have appeared upon the lists of eligibles, and if the petitioners attain sufficiently high marks in their examinations they will stand ahead of veterans and will be certified for promotion. Indeed, the petition in the first case states that one nonveteran on the list did succeed in attaining a sufficiently high mark in spite of the two point preference to veterans and was promoted to a captaincy. It is clear, however, that Rule 21 is a substantial and permanent obstacle to the promotion of nonveterans, and that in some circumstances, especially at the present time when doubtless available veterans are comparatively numerous, it may be a very serious obstacle. The petitioners' rights are adversely affected by the rule, and they may challenge its validity in these proceedings. Kenworthy & Taylor, Inc. v. State Examiners of Electricians, 320 Mass. 451, 70 N.E.2d 247. See Nichols v. Commissioner of Public Welfare, 311 Mass. 125, 130, 40 N.E.2d 275.

The petitioners' first contention is that the second paragraph of Rule 21 is unconstitutional. ¹

The constitutionality of veterans' preference in the civil service has been on several occasions the subject of most careful consideration by this court and in advisory opinions of the Justices. Two propositions must now be deemed established. (1) Any absolute preference to veterans as the result of which the appointing authority is obligated to appoint them to office in preference to others without regard to fitness is unconstitutional. Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, 32 L.R.A. 253. (2) But if the fitness of the veteran is first determined by passing an examination such as is required by Rule 21 he may be given a preference in actual employment. This second proposition was first announced by a majority of the Justices in Opinion of the Justices, 166 Mass. 589, 44 N.E. 625, 34 L.R.A. 58, but it has subsequently been adopted unreservedly in actual decisions of the court. Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, 169 N.E. 502; Smith v. Director of Civil Service, 324 Mass. 455, 460-461, 87 N.E.2d 196; See McCue v. Director of Civil Service, 325 Mass. 605, 91 N.E.2d 761. The history of the subject was reviewed with full citation of our cases up to that time in Opinion of the Justices, 324 Mass. 736-740-742, 85 N.E.2d 238. Nothing would be gained by again considering and weighing the arguments one way and the other in this difficult field. It must be deemed established as matter of authority that, at least as to original appointments, a preference like that brought about by Rule 21 to veterans who have already passed a qualifying examination is not unconstitutional.

The petitioners contend that promotions in the public service stand in a position different from that of original appointments to that service. They insist that whatever value the military experience of an applicant may have in fitting him for original appointment is gradually lost as he accumulates new experience, and that it is therefore unreasonable and arbitrary to continue to give weight to military training in the matter of promotions. They further assert that the present rule is harmful to the public service in that it creates a class of civil servants, some of whom have served for many years, and to whom promotion is...