Scott v. Comm'r of Civil Serv.

• Citation: 172 N.E. 218,272 Mass. 237
• Parties: SCOTT v. COMMISSIONER OF CIVIL SERVICE.
• Decision Date: 03 July 1930
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 237

172 N.E. 218

SCOTT

v.COMMISSIONER OF CIVIL SERVICE.

Supreme Judicial Court of Massachusetts, Suffolk.

July 3, 1930.

Report from Supreme Judicial Court, Suffolk County.

Mandamus proceeding by John F. Scott against the Commissioner of Civil Service. Order denying petition for writ of mandamus, and case reported.

Affirmed.

P. A. Dever and M. F. McGuire, both of Boston, for petitioner.

C. F. Lovejoy, Asst. Atty. Gen., for respondent.

CROSBY, J.

This is a petition for a writ of mandamus, to compel the commissioner of civil service to place the petitioner's name upon the eligible list of applicants for service in the fire department of the city of Cambridge, upon the ground that he is a ‘veteran’ within the meaning of G. L. c. 31, § 21, as amended. The facts as stated in the petition are not in dispute. The petitioner made application to join the United States Navy and was sworn into the service on November 13, 1918. The armistice in the World War was signed on November 11, 1918. When the petitioner enlisted R. L. c. 19, § 20, was in force and defined a ‘veteran’ as used in the civil service as ‘a person who served in the army or navy of the United States in the war of the rebellion * * * or a citizen of this commonwealth who distinguished himself by gallant and heroic conduct while serving in the army or navy of the United States and has received a medal of honor from the president of the United States.’ The above definition of ‘veteran’ was changed by St. 1919, c. 150, § 1, which reads as follows: ‘The word ‘veteran’ as used in this act shall mean any person who has served in the army, navy or marine corps of the United States in time of war or insurrection and who has been honorably discharged from such service or released from active duty therein, provided that such person was a citizen of this commonwealth at the time of his induction into such service or has since acquired a settlement therein; and provided further that any such person who at the time of entering the said service had declared his intention to become a subject or citizen of the United States and withdrew such intention under the provisions of the act of congress approved July ninth, nineteen hundred and eighteen, and any person designated as a conscientious objector upon his discharge shall not be deemed to be a ‘veteran’ within the meaning of this act.' The definition of ‘veteran’ is now found in G. L. c. 31, § 21, as amended by St. 1924, c. 155, and provides that the service shall be ‘in time of war.’

It is the contention of the petitioner that the war continued until the proclamation of the treaty of peace in 1921, and, therefore, he comes within the statutory definition of a veteran although his service did not begin until after the signing of the armistice. We cannot agree with this contention. When the armistice was signed it was generally recognized that the war had come to an end. It was so considered by the President of the United States who, on November 11, 1918, addressing the two Houses of Congress in joint assembly under the provisions of the Constitution, stated ‘The war thus comes to an end; for, having accepted these terms of armistice, it will be impossible for the German command to renew it.’ It also appears that the Governor of this Commonwealth in his Thanksgiving Proclamation in November, 1918, stated ‘and the war has been brought to a victorious end.’ Official Papers, Governor of Massachusetts 1916-1918, p. 426. The Governor of the Commonwealth in his inaugural address to the Legislature in January, 1919, stated, ‘The war is over.’ Senate Documents 1919, No. 1, pp. 22, 23. The words ‘in time of war’ found in the statute in question (St. 1919, c. 150, approved May 2, 1919) are to be construed in connection with the foregoing utterances of the President of the United States and the Governor of the Commonwealth. It is doubtless true, as the petitioner argues, that, strictly...