Timmins v. Civil Serv. Com'rs

• Decision Date: 26 June 1931
• Citation: 177 N.E. 1,276 Mass. 142
• Parties: TIMMINS v. CIVIL SERVICE COM'RS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 142

177 N.E. 1

TIMMINS

v.CIVIL SERVICE COM'RS.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1931.

Report from Supreme Judicial Court, Suffolk County.

Petition by Edward F. Timmins for a writ of mandamus to the Civil Service Commissioners. Order denying petition, and case reported.

Affirmed.

D. M. Lyons, of Boston for plaintiff.

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

WAIT, J.

This is a petition for a writ of mandamus filed by a supervising school physician in the employ of the school department of the city of Boston to compel the commissioners of civil service for the Commonwealth to examine him as applicant for examination to fill the position of director of school hygiene in an examination open only to persons of the grade of supervising physicians in the department of school hygiene, and to refrain from proceeding to hold an open competitive examination to fill said position, or any examination open to any persons other than those of the grade of supervising physicians, or to any persons other than those classified as school physicians in the city of Boston or in one of the grades of said classification. The case was heard upon an agreed statement of facts and the testimony of a witness found to be true. The material facts are as follows: In 1930 the position of director of school hygiene became vacant through death. The school committee, the appointing power, requested the commissioners of civil service to hold an open competitive examination for the purpose of establishing an eligible list from which under the civil service law the vacancy might be filled. Apparently no eligible list was then in existence from which the commissioner, pursuant to the rules of the commission, which have the force of law, Ransom v. Boston, 192 Mass. 299, 78 N. E. 481,7 Ann. Cas. 733, could certify three names to the appointing power. Rule 16, § 1. Under Rule 4 school physicians with dentists, medical and physical inspectors, veterinary inspectors and veterinarians form Class 32 of the official service. There are no grades classified under Class 32. The director of school hygiene is a full time position with salary fixed at $7,000 per annum. There are seven supervising school physicians in the service of the school department who give three or four hours of school days to this work and receive salaries of $2,200 per year. There are also about sixty school physicians on stated salaries. In 1925 an open competitive examination was held for the purpose of establishing an eligible list from which supervising physicians in the department of school hygiene could be appointed, and as a result there have been appointed the seven supervising physicians. The commissioners of civil service, disregarding the request of the appointing power for an open competitive examination, gave notice of a promotional competitive examination to be held on January 30, 1931, to fill the position of director of school hygiene, and limited application to the supervising physicians then in the department. The petitioner, with four others, applied to take the examination; but only the petitioner presented himself for examination at the time and place fixed. Although he desired to be examined and did all then required of him, he was told that by order of the commission no examination would then be...