324 Mass. 455 | Mass. | 1949
These two petitions for writs of certiorari against the director of civil service and the civil service commission raise identical questions as to the preference of disabled veterans. The petitioners Smith and McMorrow are applicants for appointment as police officer and fireman, respectively, of the city of Cambridge. In each case the parties have agreed that all the facts stated in the respondents’ return are correct and are all the material facts, and at their request the judge has reported each case without decision. G. L. (Ter. Ed.) c. 213, § IB, as inserted by St. 1939, c. 257, § 1; c. 231, § 111.
On March 22, 1947, the petitioner Smith and other applicants, including one Halliday, one O’Connell, one Linehan, and one McCann, took the examination for police entrance. On September 22, 1947, there was established an eligible list, on which all five were given the preference as veterans under G. L. (Ter. Ed.) c. 31, § 23, as amended by St. 1939, c. 238, § 30, and were placed respectively in the twenty-third, nineteenth, thirty-fifth, thirty-eighth, and forty-fifth positions. No one was then placed on the list as a disabled veteran under § 23. Halliday, O’Connell, and McCann stated in their applications that they were disabled veterans, O’Connell claimed preference as a disabled vetcran, O’Connell and McCann stated that they were receiving compensation or pension due to a disability incurred in line of duty in time of war, but no further proof necessary under § 23, as amended, was submitted prior to the establishment of the eligible list. See McCabe v. Judge of the District Court, 277 Mass. 55, 58-59; Sheehan v. Commissioner of Civil Service, 293 Mass. 44, 47-48. Between November 19, 1948, and January 14, 1949, Halliday, O’Connell, Linehan, and McCann filed amendments to their applications, in which each stated that he was a disabled
The facts in the case brought by the petitioner McMorrow are substantially similar, and need not be recited.
The respondents contend that the petitioners are not parties aggrieved by the action of the respondents. As the results will not be affected, we pass by the point and proceed directly to the merits.
The petitioners’ contention that the respondent director could not revise the eligible list is based upon the first sentence of c. 31, § 12, as amended, which first appeared in St. 1945, c. 704, § 1, and reads: “Each list of persons eligible to any position shall be prepared or revised as soon as may be after their respective ratings or standings have been determined by the director by examination or otherwise in accordance with the rules of the commission, but, in case of the determination thereof by a written examination, not later than six months after the date of such examination.”
The preference of a disabled veteran was introduced into our statutes by St. 1922, c. 463. It is now found in G. L. (Ter. Ed.) c. 31, § 23, as amended by St. 1939, c. 238, § 30, and reads in part as follows: “The names of veterans who
When the Legislature enacted the later statute setting a time for the establishment of the eligible list, it presumably was aware of the mandate of the earlier statute respecting the preference to disabled veterans. If reasonably practicable and there is no positive repugnancy, a rational and workable effect must be given to both statutes, to the end that there may be a harmonious and consistent body of legislation. School Committee of Gloucester v. Gloucester, ante, 209, 212, and cases cited. There appears no reason why the two statutes cannot stand together. The provision of § 23, as amended, establishing the preference to disabled veterans is the expression of a legislative policy which has continued unchanged since 1922. The relatively recent requirement of § 12, as amended, that the eligible list is to be established within six months of the written examination is not to be interpreted as subject to the additional, unexpressed provision that if the establishment of the list be not timely, or if its establishment be timely but it contains errors or fails to conform to other provisions of law, no further action can be taken respecting it. “As to a statute imperative in phrase, it has often been held that where it relates only to the time of performance of a duty
After the respective lists in the cases at bar were established within the six months’ period, appointments of persons certified from them would continue valid notwithstanding that the disabled veterans later elected to claim preference as such. See Hayes v. Hurley, 292 Mass. 109. But during the effective period of a list, should a veteran thereon who has not done so previously elect to claim the preference of a disabled veteran, § 12 does not prevent the director thereafter from giving full effect to the legislative policy expressed in § 23. The use of the present tense in one clause of § 23, to the effect that a disabled veteran “shall present proof that he is at the time of application for appointment disabled,” is not enough, in view of the legislative purpose, to bring about a contrary conclusion. We perceive no reason why this could not refer to an amended application. If the Legislature intended that the proof required of a disabled veteran must be presented at the time of the original application or not at all, one would expect to find in a statute of this kind some direct expression to that effect. In the cases at bar, it was the duty of the director, as he in fact did, to revise the eligible lists and to place the names of the disabled veterans at the top.
The agreed facts, which are confined to those set forth in the respondents’ returns and do not include the allegations of the petitions as such, fall short of what we think we should have in order to draw the inference of a waiver of the preference of a disabled veteran in these cases. See Conway v. McElligott, 172 Misc. (N. Y.) 774, affirmed 258 App. Div. (N. Y.) 873, affirmed 282 N. Y. 779; Flaherty v. Marsh,
The remaining question is the constitutionality of that part of G. L. (Ter. Ed.) c. 31, § 23, as amended, which bestows upon disabled veterans a preference superior to that of veterans in being placed upon eligible lists. See MacCarthy v. Director of Civil Service, 319 Mass. 124, 125. We are not confronted with the question of the constitutionality of that part of § 23 “which purports to give to a disabled veteran absolute preference over all other persons including veterans in appointment to office.” See Hayes v. Hurley, 292 Mass. 109, 113.
The petitioners’ argument is based chiefly upon arts. 6 and 7 of the Declaration of Rights. In Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, the constitutionality of G. L. c. 31, § 23, as it appeared in St. 1922, c. 463, was upheld. This statute was the same as G. L. (Ter. Ed.) c. 31, § 23, before its amendment, in respects not now material, by St. 1939, c. 238, § 30. Opinion of the Justices, post, 736, 742. The Lynn case arose between veterans and a nonveteran, and no question between veterans and disabled veterans was involved. The decision was rested upon the views expressed by the majority of the Justices in Opinions of the Justices, 166 Mass. 589, where it is said in substance (page 595) that the Legislature might have thought that an honorably discharged member of the armed services might have such qualities and characteristics that it is for the interests of the Commonwealth to appoint him to certain offices or employments in preference to other male persons either for his own valuable qualifications or for the promotion of patriotism through recognition of the services of veterans. It was pointed out (pages 412-413) that the statute gave no absolute and unconditional preference to veterans, who must establish their qualifications in the same way as all others before they can be considered for preferential certification. See Younie v. Director of Division of Unemployment Compensation, 306 Mass. 567, 571. Compare Brown v. Russell, 166 Mass. 14.
The disabled veterans’ preference does not contravene § 1 of the Fourteenth Amendment to the Constitution of the United States. Mayor of Lynn v. Commissioner of Civil Service, 269 Mass. 410, 415. Gianatasio v. Kaplan, 142 Misc. (N. Y.) 611, affirmed 257 N. Y. 531, appeal dismissed 284 U. S. 595. See Ricks v. Department of State Civil Service, 200 La. 341, 364-365. No detailed argument has been made that it does.
In each case the entry will be
Petition dismissed.