264 Mass. 242 | Mass. | 1928
This case is before us upon exceptions to the order of a single justice that a writ of mandamus issue requiring the respondents to restore the petitioner to employment as tool fixer in the street department of the city of New Bedford, and to his refusal to grant the following requests:
“1. That registration is an essential prerequisite for civil service employment.
“2. That for the reason that petitioner was not holding employment in the ‘classified civil service’ the provisions of the civil service law, in respect to removals, cannot be invoked for the benefit of this petitioner since he is not within the class affected by the terms thereof.
“3. That the formality of registration, as an imposed requirement condition, under established rule having the force of law, cannot be waived by the board of civil service commissioners, or any authority whatsoever, in respect to any particular individual.
“4. That the act of waiver by the board of civil service commissioners, under the vote of October 4, 1927, twenty-one months after the filing of the petition in this case, is without legal force or effect.
“5. That the petitioner cannot have mandamus issued in his favor.”
The auditor’s report shows that from January 17, 1921, until January 14, 1925, the petitioner was employed as a tool fixer, permanent, in the street department of New
The auditor’s report further shows that in December, 1920, the superintendent of streets made requisition for certification for one tool fixer for permanent employment. Pursuant to G. L. c. 31, § 15, the director of the labor bureau certified one name, that of Joseph A. Sullivan, and, as there was no suitable eligible list and the requisition could not be filled in accord with the rules of the board, he authorized the superintendent to select any person at his discretion to fill the vacancy, and requested him to "please have him register with . . . the Civil Service Registration Clerk at New Bed-ford, whereupon his name will be entered on the roll of the employees of your department.” The superintendent, thereupon, appointed Andrew Munds, the petitioner, but did not request him to register. Munds was never notified that he should register and he never did register. As a result of the director’s letter the superintendent duly notified the commission of Mund’s appointment, and the board certified Munds for appointment in the street department, notified him of his appointment and ordered him to report to the department. Munds did as directed.
Rule 40, among other things not here important, provides as follows:
"5. Whenever the Commission shall be unable to fill a requisition, it may authorize the employing officer to make
The rule has the force of law. Attorney General v. Trehy, 178 Mass. 186, 188. Wells v. Commissioner of Public Works of North Adams, 253 Mass. 416, 419. There can be no dispute that strictly it has not been complied with. The department of civil service and registration, division of civil service, on October 4, 1927, voted “to waive the registration of Andrew Munds.”
The requests of the respondents deal with the legal effect of the facts just recited. The justice was right in refusing to give them. The petitioner did everything that he was directed to do to secure a valid appointment. The superintendent of streets failed to give the notice he was directed to give. Every requirement of law and practice except the application for registration was fulfilled. The commission certified Munds, as if application had been made.
We need not decide the legal effect of failure to register nor the power of the commission to waive, for an individual’s benefit, a general rule promulgated after approval by the Governor and Council. G. L. c. 31, § 3.
The purpose of the civil service law to protect employees in the labor service of cities against discharge without notice should not be defeated by setting up an innocent omission of the employee brought about by the authority which is seeking his discharge. See Connell v. Board of Public Works of Everett, 234 Mass. 491. O’Brien v. Inspector of Buildings of Lowell, 261 Mass. 351.
Exceptions overruled.