Sheehan v. Commissioner of Civil Serv.
| Decision Date | 30 December 1935 |
| Citation | 293 Mass. 44 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | DENNIS F. SHEEHAN v. COMMISSIONER OF CIVIL SERVICE & others. |
November 12, 1935.
Present: RUGG, C.
J., CROSBY, PIERCE DONAHUE, & QUA, JJ.
Civil Service. Veteran.
In order to obtain a disabled veteran's preference in the civil service, the applicant, though in fact having the required qualifications must also present to the civil service commissioner the proofs prescribed by G.L.
(Ter. Ed.) c. 31 Section 23.
PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Suffolk on October 2, 1934, and heard by Lummus, J.
The case was submitted on briefs.
J. P. Brennan, for the petitioner.
P. A. Dever, Attorney General, & R.
Clapp, Assistant Attorney General, for the commissioner of civil service.
This is a petition for a writ of mandamus brought against the commissioner of civil service and others, to compel the respondent commissioner to revise the civil service list in respect to the petitioner's place thereon, to declare vacant the position of inspector of plumbing for the city of Cambridge, and to order the respondent John J. Terry to appoint the petitioner to that position. The case was heard upon the petition, the answers, and an auditor's report by a single justice, who ordered the petition dismissed as matter of law. To this order the petitioner excepted.
The material facts as found by the auditor are as follows: The petitioner passed the examinations with a mark of 74.88, and on August 21 1934, the civil service commissioner certified to the respondent John J. Terry, building inspector of Cambridge three names for the position covered by the examination, the first being that of John F. Brogan, who received a mark of 74.98, and was appointed to the position; the second name was that of the petitioner; and the third name was James D. McBride, who passed with a mark of 73.38. All three nominees were veterans of the Great War. None of them claimed to be disabled veterans, except the petitioner, "if upon the facts the court shall find that he did so claim." The petitioner was wounded in France during the Great War in the line of duty. As a result of his wound his efficiency in certain industrial pursuits is affected and he receives a pension from the Federal government on account of such physical disability. No evidence was introduced to prove that the petitioner presented a certificate of a physician, approved by the board as required by G.L. (Ter. Ed.) c. 31, Section 23. His disability is not such as to prevent the efficient performance of the duties of the position for which he applied and is eligible. No evidence of proof satisfactory to the commissioner was presented, and no evidence of a doctor's report of disability was introduced except that the petitioner was examined twice by a physician whose report made no mention of any physical disability except missing teeth. The petitioner was honorably discharged from the United States Army on April 28, 1919, and the enlistment record on the back of the discharge recites "Wounded July 18, 1918, Belleau Woods, France." The petitioner presented an honorable discharge from active duty in the military service of the United States, and proof that he was at the time of application for appointment disabled in that he presented himself for examination by a doctor engaged by the commissioner who examined his wound and power of grip. The petitioner, however, did not present a certificate from the adjutant general of the army of the receipt at that time of a pension or compensation from the United States, but in answer to question...
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