Sheehan v. Hurley

• Decision Date: 02 January 1936
• Citation: 199 N.E. 403,293 Mass. 44
• Parties: SHEEHAN v. HURLEY, Com'r of Civil Service, et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 44

199 N.E. 403

SHEEHAN

v.HURLEY, Com'r of Civil Service, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1936.

Exceptions from Supreme Judicial Court, Suffolk County.

Mandamus proceedings in the Supreme Judicial Court for the County of Suffolk by Dennis Sheehan against James M. Hurley, Commissioner of Civil Service, and others. The petition was ordered dismissed as a matter of law by Lummus, J., and petitioner brings exceptions.

Exceptions overruled.

J. P. Brennan, of Boston, for petitioner.

P. A. Dever, Atty. Gen., and R. Clapp, Asst. Atty. Gen., for respondent.

CROSBY, Justice.

This is a petition for a writ of mandamus brought against James M. Hurley, the commissioner of civil service, and others, to compel the respondent Hurley as such 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, superintendent of public buildings, three names for the position covered by the examination, the first being that of John J. 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, § 23. His disability is not such as to prevent the efficient performance of the duties of the position to 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 Dr. Sheldon 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 10(d) he replied that he was receiving compensation or a pension due to a disability incurred in the line of duty in time of war or insurrection. He did not present a certificate of a physician approved by the board that he is substantially...