This is а petition for mandamus to have the rules promulgated, as of April 15, 1940, by the commissioner of public welfare and the examinations conducted thereunder by the director of civil service declared null and void. The petition was heard in the Superior Court upon an auditor’s report and oral testimony. The judge ordered the petition dismissed. The petitioners alleged exceptions to the denial of requеsts for rulings and to the order. Two intervening petitioners have waived their exceptions.
The social security act provided for grants of Federal funds to the States for the purpose of furnishing old age assistance and aid to dependent children, but no State was entitled to receive such grants until it had adopted a plan for the administration of such assistance, approved by the social security boаrd which was in charge of the administration and enforcement of this act of Congress. U. S. C. (Sup. V) Title 42, §§ 301, 601. The Legislature, in order to enable this Commonwealth to receive these grants, enacted St. 1935, c. 494, which authorized thе department of public welfare to cooperate with the appropriate Federal authorities in order to receive the benefits of the grants. In the next year a new chapter 118, dеaling with aid to dependent children, and a new chapter 118A, dealing with old age assistance, were inserted in General Laws by St. 1936, c. 413, § 1, and St. 1936, c. 436, § 1, respectively. The social security act was amended in 1939 so as to require on and after January 1, 1940, that State plans should provide that employees engaged in old age assistance and aid to dependent children programs should be put upon a merit basis. U. S. C. (Sup. V) Title 42, §§ 302, 602. Thе civil service laws and rules then in effect in this Commonwealth applied only to such employees in cities and to those in towns of more than twelve thousand population that had adopted these lаws. Only four towns had adopted these civil service laws in respect to their employees generally,
The commissioner of public welfare promulgated rules, as of April 15, 1940, for a merit system for all employees engaged in the administration of old age assistance and aid to dependent children programs in towns where such employees were not already in the classified service; and, in pursuance of said rules, an examination was conducted by the civil service department. All persons receiving the passing grade of seventy per cent were to be appointed under the merit system rules to the positions they then held, and those not receiving said grade were to be discharged from their positions and the vacancies filled by competitive examinations. This examination was open to all who by training, experience and age were eligible according to the provisions of said rules, but those then engaged in such employment were not required to meet the minimum qualifications of training and experience or the age limitation, but they were required to meet the passing requirement of seventy per cent in the written test. The examination papers were corrected but no grades were announced until September 5, 1941.
Statute 1941, c. 402, was passed and became effective as an emergеncy law four days after the present petition was filed. This statute extended the scope of the civil service laws to include the positions of persons, other than members of boards of public welfare, employed in cities and towns on old age assistance or aid to dependent children programs. It ratified the establishment of the merit system rules promulgated by the commissioner of public welfare and the holding of an examination by the director of civil service, and provided that persons so employed on April 15, 1940,' who took and passed said examination, should thereafter have unlimited tenure in aсcordance with the civil service laws, and that the positions of those who failed in said examination should be deemed vacant.
The petitioners excepted to the denial of their requests to the effect that the action of the commissioner of public welfare in establishing said rules and the action of the di
The department of public welfare was empowered by G. L. c. 118, as appearing in St. 1936, c. 413, § 1, and G. L. c. 118A, as appearing in St. 1936, c. 436, § 1, to exercise broad powers of supervision over the activities of local agеncies and to make rules relative to the administration of aid to dependent children and old age assistance. See G. L. c. 118, § 5, and c. 118A, § 10, as so appearing. There is nothing in these sections nor in any other provisions of law that authorized the commissioner of public welfare to extend the civil service laws to the employees in question, although he was apparently acting in good faith in an attemрt to prevent a cessation of Federal grants at a time when the Legislature was not in session. But the exigencies of the situation did not generate any power other than that conferred upon him by law. The action taken by him and the director of civil service was without support in law at the time this petition was filed. Boston, Worcester & New York Street Railway v. Commonwealth,
Even if the action of the commissioner of public welfare was unauthorized, the petitioners would not be entitled to prevail if St. 1941, c. 402, validated such action. The Legislature may confirm, adopt and ratify the acts of a public
The petitioners contend that this statute is invalid, and especially that it violates art. 10 of the Declaration of Rights which prevents the sequestration of the property of a citizen; art. 1, § 10, the сontract clause of the Constitution of the United States; and the due process and the equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.
The petitioner Blanchard had a contract of employment with the town of Needham to serve as agent of the board of public welfare for one year which would expire in March, 1942. He took the examination оf September 21, 1940, received a passing mark, continued as agent of the board, and now has unlimited tenure as provided by St. 1941, c. 402. He points to no way in which his contract with the town has been impaired. But the short answеr to any contention that it was, is that Blanchard elected to participate in the new merit system by taking the examination and receiving a passing mark. The judge was not wrong in finding, as he impliedly did in dismissing the petition, that Blаnchard is now enjoying the benefits of the new statute. One cannot accept the benefits of a statute and at the same time deny its validity. It is not open to him to contend that this statute is invalid. Pitkin v. Springfield,
We now deal with the objections of the remaining petitioners- to the statute. Both of these petitioners are private citizens who stand in no other relation to the subject matter of this controversy than to seek the vindication of a public right which, in this instance, is the due execution of the laws of this Commonwealth. Brewster v. Sherman,
These two petitioners have a right to contend, and they do contend, that the statute arbitrarily discriminates in favor of those already in the public service and denies an equal opportunity to our citizens to secure employment in two important branches of governmental activity.
The Legislature has the power to create offices, establish their tenure, define the eligibility of thosе seeking such offices, fix their compensation or duties, change the tenure, compensation or duties, and abolish all of such offices other than those provided for in the Constitution., And this power is not limited to offices intimately connected with the State government but applies to offices that may be created and
Exceptions overruled.