292 Mass. 109 | Mass. | 1935
This is a petition for a writ of mandamus-brought against James M. Hurley, the commissioner of civil service, and his two associates, Merton L. Brown, the commissioner of insurance, and James E. Curry, whose name was among the three names certified by the commis
The petitioner is .conceded to be a disabled veteran, having suffered the amputation of his left leg by reason of service in the Great War; the respondent Curry is a veteran but not disabled. G. L. (Ter. Ed.) c. 31, § 23. The other facts, all of which occurred in 1934, so far as material are as follows: On March 10 a written examination for the position of insurance attorney was held. The announcement for this examination stated that the physical fitness was to be determined by physical examination. The petitioner and others passed this written examination. Curry received the highest mark and the petitioner stood fourth. On April 24, the several applicants underwent a physical examination conducted by the civil service commissioners which was ordered under Rule 11 (1) of the Civil Service Rules providing that that board may order such examination if in its opinion physical qualifications are necessary or desirable for any particular office or position. On May 9 the civil service commissioners voted to disqualify the petitioner because of physical disabilities. On June 5 the petitioner received a notice that he had failed to pass the physical examination because of the amputation of his left leg and that therefore his name could not be placed on the eligible list. On the same day the petitioner filed an appeal, so called, from the decision disqualifying him because of his failure to pass the physical examination on the ground that his disability did not impair the efficient performance of his duties in the position sought. On June 6 the respond
The certification of the three names including that of Curry on June 6 was valid. It was in accord with the decision of the civil service commissioners that the petitioner had failed to pass the physical examination. His name therefore could not rightly be placed upon the eligible list. It is of no consequence that the petitioner had filed what is termed an appeal on June 5. That so called appeal is not a recognized step in the procedure. It was merely a request that the question already once decided be considered anew. It had no standing as matter of right. It was addressed wholly to the discretion of the civil serv
The question is whether as matter of law the respondent Hurley is required by law to revoke the appointment of Curry. It is provided by. Rule 13 of the Civil Service Rules that the commissioner “may before or after an appointment has been made cancel a certification, if he finds that the certification was made in error, or that any person certified was placed on the eligible list through mistake or fraud; and, if a person has been appointed from such certification, he may revoke his appointment and order his discharge.” There is nothing in this record to indicate that any name was placed on the eligible list through mistake or fraud or that the certification was made in error. The certification was made in accordance with the vote of the civil service commissioners. It does not appear that there was any error on the part of the board. The second vote on this point may have been based on facts not appearing at the first hearing. It may have been based upon renewed consideration and giving weight to factors not thought of moment at the earlier vote. Nothing in the agreed facts necessarily implies that the earlier vote was regarded as having been mistakenly made. A change of opinion may have resulted from the second hearing without belief that the earlier decision on the facts then presented was erroneous. Paper Trucking Co. v. Russo, 281 Mass. 209. If it be assumed that the respondent Hurley has the power to revoke the appointment, the rule simply confers that power as an exercise of discretion. That is necessarily implied by the use in the rule of the permissive word “may” and the omission of the imperative word “shall.” Dowling v. Board of Assessors, 268 Mass. 480,
Although the point has been argued, it becomes unnecessary in view of the grounds upon which this decision rests to pass upon the constitutionality of that part of G. L. (Ter. Ed.) c. 31, § 23, which purports to give to a disabled veteran absolute preference over all other persons including veterans in appointment to office.
Petition dismissed.