McCue v. Director of Civil Service

91 N.E.2d 761, 325 Mass. 605, 1950 Mass. LEXIS 1127
CourtMassachusetts Supreme Judicial Court
DecidedApril 4, 1950
StatusPublished
Cited by6 cases

This text of 91 N.E.2d 761 (McCue v. Director of Civil Service) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCue v. Director of Civil Service, 91 N.E.2d 761, 325 Mass. 605, 1950 Mass. LEXIS 1127 (Mass. 1950).

Opinion

Counihan, J.

This is a petition for a writ of certiorari brought against the director of civil service and the civil service commissioners. The parties have agreed that all of the facts stated in the return of the respondents are correct, and that such facts are all of the material facts. At their request the judge reported the action to this court without decision. G. L. (Ter. Ed.) c. 213, § IB, as inserted by St. 1939, c. 257, § 1; G. L. (Ter. Ed.) c. 231, § 111. See Smith v. Director of Civil Service, 324 Mass. 455.

The petitioners are all nonveteran members of the police and fire departments of the city of Boston or of the police department of the metropolitan district commission. It is agreed that they are all within the classified civil service. The petition involves the validity of a decision of the director of civil service under an amendment to Rule 21 of the rules of the civil service commission made by virtue of G. L. (Ter. Ed.) c. 31, § 3, as appearing in St. 1945, c. 702.1 This amend[607]*607ment, which was approved by the Governor and Council on August 30, 1949, effective November 10, 1949, now reads: “1. Promotions in the Classified Official Service shall be on the basis of merit ascertained by examination and seniority of service. 2. In competitive examinations for promotion to any position in the Classified Official Service the Director shall add two points to the general average mark obtained by any veteran, as defined in General Laws, Chapter 31, Section 21, providing such veteran has first obtained a passing mark in said examination.”

The petitioners respectively took certain examinations for promotion within their departments on different days, namely, June 4, 1949, June 11, 1949, July 22, 1949, and August 19, 1949.

The return of the respondents agrees with the allegations of the petitioners, “That each of the petitioners in their respective examinations received a passing mark, and that if two points are added to the general average mark of veterans taking the same examinations the petitioners will not then be as near the top of each eligible list respectively as they otherwise would be.” On November 4, 1949, the petitioners, through counsel, requested in writing a decision from the director as to the effect of the amendment to Rule 21 on the eligible lists to be established as the result of examinations taken before the effective date of the amendment. On November 16,1949, the director made a decision, and so notified counsel, to the effect that by virtue of the amendment to Rule 21 he would add two points to marks of veterans passing the promotional examinations held before November 10, 1949, which the petitioners had taken, and that these two points would be added before the eligible lists were established. 1 From this decision the petitioners [608]*608duly appealed to the civil service commission, which on November 17, 1949, denied their appeal. It is this action of the commission which the petitioners seek to quash so that the decision of the director may not stand.

The petitioners contend that the amendment to Rule 21 should not apply to marks obtained as the result of examinations for promotion held before the effective date of the amendment. They admit that rules of the civil service commission have the force of law, but assert that all statutes and such rules have a prospective effect and in the absence of plain intent should not be applied retrospectively. For the purposes of this case we do not disagree with this assertion as matter of law, but the real issue here is whether in this instance the amendment was to be applied retrospectively. We do not believe that the decision of the director produces such a result.

The power to define the eligibility of persons seeking public employment, with exceptions not here material, rests on the Legislature which may delegate its powers to subordinate agencies of the Commonwealth, such as the civil service commission, and, to the extent that the Legislature has delegated such powers to the commission, the latter may exercise such authority and may change its determination from time to time as it sees fit. Timmins v. Civil Service Commissioners, 276 Mass. 142. And it has been held that, even after an applicant’s name has been placed on an eligible list, he has no right to insist that it shall retain its place. The director may revise the list by placing ahead of his name the names of disabled veterans who had failed to claim, until after the list was established, the preference accorded them under G. L. (Ter. Ed.) c. 31, § 23, as amended by St. 1939, c. 238, § 30. Smith v. Director of Civil Service, 324 Mass. 455.

The petitioners lay stress on the introductory words of the amendment, “In competitive examinations for promotion,” as indicating that the two point preference is chronologically a part of the examination itself. However, since the two points are to be added only to the marks of those [609]*609who pass the examination, it is clear that the two points cannot be added at the time of the examination, but must be added later when the results have been finally determined, and this may not be until some time after the examination papers have been originally marked.

The process of obtaining promotion in the classified civil service as prescribed by c. 31 and the rules of the commission, briefly summarized, is this: After an examination is ordered by the director (§ 2A [e]), he posts public notice of such examination (§ 8) and prepares it (§ 10). Examination is then held open to all applicants who have filed (§§ 8, 13). Those taking the examination are notified of results within sixty days (§ 12). Within fourteen days of notice of results an applicant may file with the director a request for a review of the markings on his examination paper, setting forth specifically in what particulars the results of the examination are allegedly incorrect (§ 12A). In such case the director, within six weeks after the filing of a request for review of the markings, shall cause such examination paper and the markings thereon to be reviewed, and transmit a copy of his decision to the applicant (§ 12A). Within fourteen days after notice of such decision the applicant may appeal to the commission (§ 12A). After the filing of such appeal the commission shall hold a hearing, render a decision, and transmit a copy of such decision to the applicant (§ 12A). Not later than six months after such examination a 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 (§ 12). The director shall combine into one list all eligible lists for the same position in the order of ratings established in examinations and in accordance with the laws relating to preference to veterans and disabled veterans (§ 12). From the eligible list thus established persons shall be appointed and promoted upon requisition by the appointing officer upon certification by the director.

[610]*610Obviously in these circumstances the director has no occasion to add two points to marks of veterans who have passed until the final results of the examination have been determined, after all appeals have been disposed of. It would seem that commonly the appropriate time to add the two points is just before the eligible list is established for only then is it certain what the final marks are to be.

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91 N.E.2d 761, 325 Mass. 605, 1950 Mass. LEXIS 1127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccue-v-director-of-civil-service-mass-1950.