Nichols v. Commissioner of Public Welfare

• Decision Date: 25 February 1942
• Citation: 40 N.E.2d 275,311 Mass. 125
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MARIAN C. NICHOLS & others v. COMMISSIONER OF PUBLIC WELFARE & others.

311 Mass. 125

40 N.E.2d 275

MARIAN C. NICHOLS & others v. COMMISSIONER OF PUBLIC WELFARE & others.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1942

February 3, 1942.

Present: FIELD, C.

J., QUA, COX, &amp RONAN, JJ.

Public Welfare. Civil Service. Department of Public Welfare. Old Age Assistance. Dependent Child. Municipal Corporations, Officers and agents, Public welfare. Constitutional Law, Waiver of constitutional rights, Assertion of constitutional rights Political subdivisions, Public employment, Ratification of unauthorized act, Obligation of contracts, Due process of law, Equal protection of laws. Public Officer. There was nothing in G.L.c. 118, as appearing in St. 1936, c. 413,

Section 1, or in c 118A, as appearing in St. 1936, c. 436, Section 1 authorizing the commissioner of public welfare to promulgate rules extending the civil service laws to municipal employees, not already subject thereto, engaged in the administration of programs of aid to dependent children and old age assistance, or authorizing the civil service department to conduct an examination to effectuate those rules; but unauthorized action of that character by the two departments was subsequently validly ratified by St. 1941, c. 402.

A town welfare agent who participated in and enjoyed the benefits of the merit system, established by unauthorized action of the commissioner of public welfare and the civil service department and ratified by St.

1941, c. 402, was not entitled to contend that that statute was unconstitutional.

Citizens whose private interests were not involved in any way were not entitled to assert that a certain statute unconstitutionally impaired the contractual rights of another and deprived him of due process of law and of the equal protection of the laws; but they were entitled to contend that the statute unconstitutionally denied citizens an equal opportunity to secure public employment and arbitrarily discriminated in favor of certain employees already in the public service.

Statute 1941, c. 402, extending the civil service to certain municipal public welfare positions and ratifying action to that end of the public welfare and civil service departments, was not unconstitutional as arbitrarily preferring the incumbents of such positions over others seeking appointment thereto by relieving the incumbents of the necessity of meeting certain qualifications required of the others.

PETITION, filed in the Superior Court on June 20, 1941. The case was heard by Giles, J.

E. O. Proctor, for the petitioners.

J.

Lewiton, Assistant Attorney General, (N.

A. Levine, Assistant Attorney General, with him,) for the respondents.

RONAN, J. This is a petition for mandamus to have the rules promulgated, as of April 15, 1940, by the commissioner of public welfare and the examinations conducted thereunder by the director of civil service declared null and void. The petition was heard in the Superior Court upon an auditor's report and oral testimony. The judge ordered the petition dismissed. The petitioners alleged exceptions to the denial of requests for rulings and to the order. Two intervening petitioners have waived their exceptions.

The social security act provided for grants of Federal funds to the States for the purpose of furnishing old age assistance and aid to dependent children, but no State was entitled to receive such grants until it had adopted a plan for the administration of such assistance, approved by the social security board which was in charge of the administration and enforcement of this act of Congress. U. S. C. (Sup. V) Title 42, Sections 301, 601. The Legislature, in order to enable this Commonwealth to receive these grants, enacted St. 1935, c. 494, which authorized the department of public welfare to cooperate with the appropriate Federal authorities in order to receive the benefits of the grants. In the next year a new chapter 118 dealing with aid to dependent children, and a new chapter 118A, dealing with old age assistance, were inserted in General Laws by St. 1936, c. 413, Section 1, and St. 1936, c. 436, Section 1, respectively. The social security act was amended in 1939 so as to require on and after January 1, 1940, that State plans should provide that employees engaged in old age assistance and aid to dependent children programs should be put upon a merit basis. U. S. C. (Sup. V) Title 42, Sections 302, 602. The civil service laws and rules then in effect in this Commonwealth applied only to such employees in cities and to those in towns of more than twelve thousand population that had adopted these laws. Only four towns had adopted these civil service laws in respect to their employees generally, while three more had voted to place the office of agent under the classified civil service.

The commissioner of public welfare promulgated rules, as of April 15, 1940, for a merit system for all employees engaged in the administration of old age assistance and aid to dependent children programs in towns where such employees were not already in the classified service; and, in pursuance of said rules, an examination was conducted by the civil service department. All persons receiving the passing grade of seventy per cent were to be appointed under the merit system rules to the positions they then held, and those not receiving said grade were to be discharged from their positions and the vacancies filled by competitive examinations. This examination was open to all who by training, experience and age were eligible according to the provisions of said rules, but those then engaged in such employment were not required to meet the minimum qualifications of training and experience or the age limitation, but they were required to meet the passing requirement of seventy per cent in the written test. The examination papers were corrected but no grades were announced until September 5, 1941.

Statute 1941, c. 402, was passed and became effective as an emergency law four days after the present petition was filed. This statute extended the scope of the civil service laws to include the positions of persons, other than members of boards of public welfare, employed in cities and towns on old age assistance or aid to dependent children programs. It ratified the establishment of the merit system rules promulgated by the commissioner of public welfare and the holding of an examination by the director of civil service, and provided that persons so employed on April 15, 1940, who took and passed said examination, should thereafter have unlimited tenure in accordance with the civil service laws, and that the positions of those who failed in said examination should be deemed vacant.

The petitioners excepted to the denial of their requests to the effect that the action of the commissioner of public welfare in establishing said rules and the action of the director of civil service in conducting the examination were unauthorized.

The department of public welfare was empowered by G.L.c. 118, as appearing in St. 1936, c. 413, Section 1, and G.L.c. 118A, as appearing in St. 1936, c. 436, Section 1, to exercise broad powers of supervision over the activities of local agencies and to make rules relative to the administration of aid to dependent children and old age assistance. See G.L.c. 118, Section 5, and c. 118A, Section 10, as so appearing. There is nothing in these sections nor in any other provisions of law that authorized the commissioner of public welfare to extend the civil service laws to the employees in question, although he was apparently acting in good faith in an attempt to prevent a cessation of Federal grants at a time when the Legislature was not in session. But the exigencies of the situation did not generate any power other than that conferred upon him by law. The action taken by him and the director of civil service was without support in law at the time this petition was filed. Boston, Worcester & New York Street Railway v. Commonwealth, 301 Mass. 283 . Antoun v. Commonwealth, 303 Mass. 80 . George A. Fuller Co. v. Commonwealth, 303 Mass. 216 . Furlong v. Ayers, 305 Mass. 455 . Sheils v. Commonwealth, 306 Mass. 535 . The positions included in the classified civil service and the application of civil service laws to cities and towns were matters within the province of the Legislature, G. L. (Ter. Ed.) c. 31, and amendments, and the operation of these laws could not be extended by the administrative action of the commissioner of public welfare. Commonwealth v. Turner, 1 Cush. 493, Cox v. Segee, 206 Mass. 380 . Commonwealth v. Drew, 208 Mass. 493 . Greene v. Mayor of Fitchburg, 219 Mass. 121 . Commonwealth v. McFarlane, 257 Mass. 530 . Borggaard v. Department of Public Works, 298 Mass. 417 . Commonwealth v. Johnson Wholesale Perfume Co. Inc. 304 Mass. 452 .

Even if the action of the commissioner of public welfare was unauthorized, the petitioners would not be entitled to prevail if St. 1941, c 402, validated such action. The Legislature may confirm, adopt and ratify the acts of a public officer in excess of his authority if the Legislature could have originally granted such authority to the officer, provided vested rights are not impaired by such subsequent legislation. Spaulding v. Nourse, 143 Mass. 490. Warren v. Street Commissioners of Boston, 187 Mass. 290 . Morse v. Street Commissioners of Boston, 197 Mass. 292 . Adams v. Townsend Schoolhouse Building Committee, 245 Mass. 543 . Gray v. Salem, 271 Mass. 495. Ryder v. Lexington, 303 Mass. 281 . United States v. Heinszen & Co. 206 U.S. 370. Graham v. Goodcell, 282 U.S. 409. Isbrandtsen-Moller Co. Inc. v. United States, 300 U.S. 139. Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297. Silas Mason Co. v. Tax Commission of Washington, 302...