Ransom v. City of Boston

• Citation: 78 N.E. 481,192 Mass. 299
• Parties: RANSOM v. CITY OF BOSTON.
• Decision Date: 20 June 1906
• Court: United States State Supreme Judicial Court of Massachusetts

192 Mass. 299

78 N.E. 481

RANSOM v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1906

COUNSEL

Perry & Upton, for plaintiff.

Philip Nichols, for defendant.

OPINION

SHELDON, J.

This is an action of contract brought to recover wages which the plaintiff would have received if he had been employed continuously by the defendant from May 6, 1895, to the date of his writ.

At the trial in the superior court it appeared that the plaintiff being a veteran of the Civil War within the meaning of the civil service statutes and rules, duly registered with the civil service commission in January, 1895, as a laborer for labor service in the city of Boston; that he was eligible for such labor service; that upon a requisition made to the civil service commission by the superintendent of the public grounds department of the defendant city, he was regularly certified for such service, and was employed as a laborer in said department. He worked in that employment steadily until January 1, 1898, when a foreman in that department told him he was suspended, and thereafter he was refused work except for 10 days during which he was employed and worked as usual until March 18, 1898, when he was employed and worked as before until January 30, 1899. After this he was again laid off or suspended from time to time during the winter and early spring, and was employed and worked the rest of the time until December 4, 1901, when by an accident he became incapacitated for work until about December 8, 1902. On this last date he was refused any employment or work, and from that time until the date of the writ he was prevented by the superintendent of the department and the foreman, from doing any work. On March 1, 1903, he received notice that he was discharged by the defendant from his employment in said department for the reason that his name had not appeared upon the pay rolls as at work for six months preceeding that date but on March 26, 1903, the superintendent of public grounds was notified by the civil service commission that the plaintiff, being a veteran, was not to be discharged for that cause, and that his name was still on record at the office of said commission as an employé of the public grounds department.

There was evidence that the plaintiff was at all times, except from December, 1901, to December, 1902, able, ready and willing to work as a laborer in the department for which he was eligible, and that he habitually and frequently asked the superintendent and foreman, to employ him; that when he was first laid off or suspended another man, not a veteran, was put to work in that department as a common laborer, and afterwards continued to perform work such as the plaintiff was accustomed to do, while the plaintiff was not permitted to work; that there was work done by persons not veterans classified as laborers while the plaintiff was laid off or suspended.

The work done by the plaintiff in the spring, summer and fall was hoeing, sweeping, mowing, loading teams and helping sodders and other laborers. The work done in the winter was sweeping, shoveling off steps, shoveling snow, and clearing the ponds of snow for skating. There was evidence that the force of men employed on the public grounds in the spring, summer and fall for such work as the plaintiff did was cut down during the winter, as there was then no such work to be done, but that certain laborers, not veterans, were employed during the winter months on work which the plaintiff was able and ready to perform. He never was removed or suspended from his employment on any charges preferred against him; and there was no evidence that he ever was removed or suspended after a full hearing before the mayor, or that the removals and suspensions were made upon the written order of the mayor.

Upon this evidence, at the end of the plaintiff's case, the presiding justice ruled that the action in contract could not be maintained, and, upon the general ground that upon all the evidence the plaintiff was not entitled to maintain the action, ordered a verdict for the defendant; and the case comes before us upon the plaintiff's exceptions to this ruling.

It is provided by Rev. Laws, c. 19, § 23, that 'no veteran who holds an office or employment in the public service of the commonwealth, or of any city or town therein, shall be removed or suspended, or shall, without his consent, be transferred from such office or employment, nor shall his office be abolished except after a full hearing of which he shall have at least seventy-two hours' written notice, with a statement of the reasons for the contemplated removal, suspension, transfer or abolition. The hearing shall be before the state board of conciliation and arbitration, if the veteran is a state employé, or before the mayor of the city or selectmen of the town of which he is an employee, and the veteran shall have the right to be present and to be represented by counsel. Such removal, suspension or transfer, or such abolition of an office, shall be made only upon a written order stating fully and specifically the cause or causes therefor, and signed by said board, mayor or selectmen, after a hearing as aforesaid.' The rules of the civil service commissioners made and duly approved under St. 1884, p. 347, c. 320, § 2, and the acts in amendment thereof (see now Rev. Laws, c. 19, §§ 6, 7, 24), were put in evidence at the trial, and by agreement of the parties were produced and referred to at the argument in this court. The plaintiff contends that under these statutes and rules the defendant is obliged to employ the plaintiff so long as he is ready and able to perform the labor for which he was employed, until he shall have been discharged in the manner provided by the statute. The defendant does not deny that the statutes are now in full force, or that both the statutes and the rules of the civil service commissioners made under their authority are to be resorted to to ascertain the rights of the plaintiff; nor does the defendant now claim that it had the right to discharge the plaintiff in March, 1903, for the reason then assigned. 'Any laborer suspended and not actually employed in the department in which he is enrolled shall at the end of six months be deemed to be out of the service, and shall not be thereafter employed, except after registration and certification by the commissioners; and the employing officer shall forthwith report to the commissioners the name of any laborer to suspended: provided, however, that this provision shall not apply to veterans.' Rules of the Civil Service Commissioners, rule 47.

The defendant contends, however, that section 23 already cited does not apply to labor service; that the labor service is regulated by section 24; that the effect of the statutes taken together is to draw a distinction between the official classified public service and the labor service of the commonwealth and its cities or towns. The defendant's argument is that the provisions of the statute to be considered here are contained in Rev. Laws, c. 19, §§ 20-24, inclusive. Of these sections, section 20 defines the word veteran. Section 21 allows a veteran to apply for examination under the rules, and gives him a preference over other applicants; and it is claimed that this section cannot be made applicable to labor service, for which he is not to be examined. Section 23, which has been quoted above, provides in terms for 'the public service.' Section 24 is to the effect that the rules of the civil service commissioners 'shall provide for the employment of veterans in the labor service of the commonwealth and of the cities and towns thereof.' And the defendant insists that the change of language from the words 'public service' to 'labor service' is upon its face significant of the intention of the Legislature to make the distinction contended for.

The original provision for the examination of applicants for appointment or employment under public authority was made by St. 1884, p. 346, c. 320. Section 16 of this chapter provided that 'the examination of applicants for appointment or employment as laborers shall relate to their capacity for labor, their habits as to industry and sobriety, and the necessities of themselves and their families.' In 1887 veterans of the War of the Rebellion were given a preference in 'appointment to office or employment in the service of the commonwealth or the cities thereof,' without passing any examination under the act of 1884. St. 1887, p. 1099, c. 437. St. 1889, p. 1224, c. 473, applied to 'all cases of certification for appointment of examined persons,' and provided that the veterans should be appointed in preference to other persons who had not a higher standing on the eligible list. St. 1894, p. 671, c. 519, forbade the removal or suspension of any veteran who held 'an office or position in the civil service of any city in the commonwealth' except in the manner therein provided. St. 1895, p. 618, c. 501, seems to have been intended chiefly to give to veterans an absolute preference in the public service, without any distinction between the right to appointment to office and employment in labor service. But in Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357, it was held that sections 2 and 6 of this statute, so far as they gave to veterans peculiar and exclusive privileges distinct from those of the community in obtaining public office, were unconstitutional, although it was intimated in the opinion that perhaps a different rule might be applied to cases of mere employment for the rendition of services which did not constitute the employé a public officer. The Legislature then enacted St. 1896, p. 534, c. 517, embodying and...