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CIVIL SERVICE GCMMIssICN.
THE ACTS OF THE LEGISLATURE RELATING To THE
CIVIL SERVICE, THE DECISIONS OF THE SUPREME
JUDICIAL COURT AND ()PINICNS OF THE
ATTORNEYS-GENERAL IN RELA—
TION THERETO AND TO THE
CIVIL SERVICE RULES
THEREU'NDER.
19441
ACTS OF THE LEGISLATURE RELATING TO THE
CIVIL SERVICE.
[Chapter 320, Acts of 1884.]
AN ACT TO IMPROVE THE CIVIL SERVICE OF THE COMMON-
WEALTH AND THE CITIES THEREOF.
Be it enacted, 680., as follows :
SECTION 1. The governor shall with the advice and
consent of the council appoint three persons to be civil
service commissioners, who shall serve, one until the ex-
piration of three years, one until the expiration of two
years, and one until the expiration of one year, from the
first day of July in the year eighteen hundred and eighty-
four, and until their respective successors are appointed
and qualified; and in the year eighteen hundred and
eighty-five and in every year thereafter, the governor shall,
in May or June, in like manner appoint one person to serve
as such commissioner for three years from the first Mon-
day in the July then next ensuing, and until his successor
is appointed and qualified. Any vacancy in the office of
commissioner shall be filled for the unexpired term by
appointment as above provided. All appointments, both
original and to fill vacancies, shall be so made that not
more than two commissioners shall, at the time of any
appointment, be members of the same political party.
The governor may also, with the advice and consent of
the council, remove any commissioner. Each commis-
sioner shall be paid five dollars for each day’s service, and
his travelling and other necessary expenses in the dis-
charge of his official duty.
SEoT. 2. The said commissioners shall prepare rules
not inconsistent with existing laws or with the provisions
of this act, and adapted to carry out the purposes thereof,
for the selection of persons to fill ofiices in the govern-
ment of the Commonwealth and of the several cities
thereof, which are required to be filled by appointment,
Civil service
commissioners
to be appointed.
Not more than
two commis-
sioners to be of
same political
party.
Commissioners
to prepare
rules.
MASSACHUSETTS CIVIL SERVICE.
Rules subject to
approval of
governor and
council. See
0. 449, Acts of
1896, page 20.
Annual report
to the general
court.
Amended,
c. 393, § 5, Acts
of 1894.
Vender of
liquor or person
using same to
excess.
Person con-
victed
offence.
Amended,
c. 334, Acts of
1888. See
page 11.
Recommenda-
tions.
Oflicials not to
solicit
contributions
for political
purposes.
and for the selection of persons to be employed as labor»
ers or otherwise in the service of the Commonwealth and
of the several cities thereof. All rules so prepared shall
be subject to the approval of the governor and council,
and they may, with like approval, be from time to time
altered or rescinded. The said commissioners shall super-
vise the administration of the rules so established; they
shall from time to time suggest to the general court such
legislation as may seem to them to be desirable for the
etficient carrying out of the principles of this act, and for
the improvement of the civil service; and they shall, on
or before the tenth day of January in every year, report
to the general court their doings during the preceding
year, including any rules adopted under the provisions of
this section.
SECT. 3. No person habitually using intoxicating bev-
erages to excess, shall be appointed to, or retained in any
office, appointment or employment to which the provisions
of this act are applicable ; nor shall any vender of intoxi-
cating liquor be so appointed or retained.
SECT. 4.. No person shall be appointed to or employed
in any office to which the provisions of this act are appli-
cable within one year after his conviction of any ofience
against the laws of this Commonwealth; and if any per-
son holding such an appointment or in any such employ-
ment shall be convicted of the violation of any such law,
he shall be immediately discharged from such appointment
or employment.
SEo'r. 5. No recommendation of any person who shall
apply for ofifice or place under the provisions of this act,
which may be given by any senator, member of the house
of representatives, alderman or councilman, except as to
the character or residence of the applicant, shall be re-
ceived or considered by any person concerned in making
any appointment under this act.
SE01‘. 6. No councillor, senator, representative, alder-
man or councilman, or any officer or employee of either
of said bodies, and no executive or judicial oflicer of the
state, and no clerk or employee of any department or
branch of the government of the state, and no executive
officer, clerk or employee of any department of any city
CIVIL SERVICE LAW.
government shall personally, directly or indirectly, solicit
or receive, or be in any manner concerned in soliciting or
receiving, any assessment, subscription or contribution for
any political purpose whatever; but this shall not be con-
strued to forbid such persons to be members of political
organizations or committees.
SECT. 7. No person shall, in any room or building oc-
cupied for the discharge of omcial duties by any officer
or employee of the state or any city thereof, solicit in
any manner whatever, or receive, any contribution of
money or any other thing of Value for any political pur-
pose whatever. .
SECT. 8. No officer or employee of the state, or any
city thereof, shall discharge, or promote, or degrade, or
in any manner change the official rank or compensation
of any other ofiiicer or employee, or promise or threaten to
do so, for giving or withholding or neglecting to make any
contribution of money or other Valuable thing for any
political purpose.
SECT. 9. No officer, clerk or other person in the ser-
vice of the state or any city thereof shall, directly or in-
directly, give or hand over to any other oflicer, clerk or
person in said service, or to any councillor, senator, mem-
ber of the house of representatives, alderman, council-
man, or commissioner, any money or other Valuable thing
on account of or, to be applied to the promotion of any
political object whatever.
SECT. 10. No person in the service of the state or any
city thereof, shall use his official authority or influence
either to coerce the political action of any person or body
or to interfere with any election.
SECT. 11. No person in the public service shall for
that reason be under any obligation to contribute to any
political fund, or to render any political service, and shall
not be removed or otherwise prejudiced for refusing to
do so.
SECT. 12. No person while holding any public office
or in nomination for, or while seeking a nomination or
appointment for any oflice, shall corruptly use, or promise
to use, either directly or indirectly, any official authority
or influence (whether then possessed or merely antici-
Solicitations
not to be made
in buildings
used for
ofiicial duties.
Ofiicers not to
be affected by
refusal to
contribute.
No oflicer to
give money to
another oflicer
for political
object.
Political action
not to be
coerced.
Public officers
not obliged to
contribute to
political fund.
Corrupt
methods of
procuring nomi-
nations, etc.
MASSACHUSETTS CIVIL SERVICE.
Wines, etc.
furnished city
oflicials not to
be paid for by
city.
General rules.
pated), in the' way of conferring upon any person, or in
order to secure or aid any person in securing any ofl‘ice or
public employment, or any nomination, confirmation, pro~
motion or increase of salary, upon the consideration or
condition that the vote or political influence or action of
the last named person, or any other, shall be given or
used in behalf of any candidate, officer or party, or upon
any other corrupt condition or consideration.
SECT. 13. N 0 city in the Commonwealth shall pay any
bill incurred by any official or oflicials thereof for wines,
liquors or cigars; nor shall any city pay any bill for re-
freshments furnished to any official of said city where the
amount for any one day shall exceed one dollar for each
member of the government of said city who certifies over
his own signature to the correctness of the bill.
SECT. 14. The rules mentioned in section two may he
made from time to time, and may be given a general or a
limited application, and they shall, among other things,
provide : -—
First, For the classification of the offices and employ-
ments to be filled.
Second, For open competitive and other examinations
by which to test applicants for office, or for employment,
as to their practical fitness to discharge the duties of the
positions which they desire to fill.
,,l‘_,ZIZiZf_CZ_,__EQL the fillingmof jacancies in ofiices in accord-
Amended,
1889, and c. 517
Acts of 1896.
See ptges 13
and 21.
ance with the results of such examinations 556%; the
selection of persons for public employment in accordance
with such results, or by order of application, or otherwise,
as may seem most desirable to carry out the provisions of
this act.
Fourth, For promotions in office on the basis of ascer-
tained merit and seniority in service and examination as
may seem desirable. (In all cases where it is practicable
vacancies shall be filled by promotion.)
Fifth, For a period of probation before an appointment
or employment is made permanent. .
Sixth, For giving preference in appointments to office
and promotions in ofi‘ice (other qualifications being equal)
to applicants who served in the army or navy of the
United States in time of war and have been honorably
discharged therefrom.
CIVIL SERVICE LAW.
7
SEcT. 15. Elective or judicial oflicers and officers
whose appointment is subject to confirmation by the execu-
tive] council, a city council or a school committee, heads
of any principal department in a city, ofiicers for the faith-
ful discharge of whose duties a superior officer is required
to give bond, teachers of the public schools, the private
secretary of the governor or of the mayor of any city
shall not be affected, as to their election or selection, by
any rules made as-aforesaid; but such rules shall apply
to members of the police and fire departments other than
police and fire commissioners, chief superintendents and
marshals of police departments, and chief engineers of
fire departments.
Snc'r. 16. No question in any examination under the
rules established as aforesaid shall relate to political or
religious opinions or afiiliations, and no appointment or
selection to an office or for employment within the scope
of the rules established as aforesaid shall be in any man-
ner affected or influenced by such opinions or affiliations.
Such examinations shall be practical in their character,
and so far as may be shall relate to those matters which
will fairly test the relative capacity and fitness of the per-
sons examined to discharge the duties of the service into
which they seek to be appointed. The examination of
applicants for employment as laborers shall relate to their
capacity for labor, their habits as to industry and sobriety,
and the necessities of themselves and their families.
Sncr. 17. Every application, in order to entitle the
applicant to appear for examination or to be examined,
must state the facts on the following subjects: 1. Full
name, residence, and post-office address. 2. Citizenship.
J. Age. 4. Place of birth. 5. Health and physical ca-
pacity for the public service. 6. Right of preference by
reason of military or naval service. 7 . Previous employ-
ment in the public service. 8. Business or employment
and residence for the previous five years. 9. Education.
Such other information shall be furnished as may reason-
ably be required touching the applicant’s fitness for the
public service.
Sam. 18. No person in the public service shall wil-
fully and corruptly, by himself or in cooperation with one
or more other persons, defeat, deceive or obstruct any
Officers not af-
fected.
Amended,
c. 95, Acts of
1893, and c. 502,
Acts of 1896.
See pages 14
and 21.
N o examination
concerning
political or re-
ligious opinions.
Examinations
to be practical.
Statements to
be made by
applicants for
examination.
Amended,
c. 183, Acts of
1889. See
page 12.
Persons in
public service
not to obstruct
any one in
respect of right
8 MASSACHUSETTS CIVIL SERVICE.
gfo person in respect of his or her right of examination; or
Sizcgetinforma- wilfully, corruptly or falsely mark, grade, estimate or
report upon the examination or proper standing of any
person examined hereunder, or aid in so doing; or wil-
fully or corruptly make any false representations con—
cerning the same or concerning the person examined ; or
wilfully or corruptly furnish to any person any special
or secret information, for the purpose of either improving
or injuring the prospects or chances of any person so ex-
amined, or to be examined, being appointed, employed or
promoted.
Rules“) be Seer. 19. All rules established as hereinbefore pro-
printed and
distl‘ibuted- vided, and all changes therein, shall forthwith be printed
Amended, O
$55893» éifets of for distribution by said commissioners, and a certified copy
page 11- thereof shall be sent to the mayor of each city, and the
same shall be published in one or more newspapers in each
city, and in any such publication of rules shall be specified
the date, not less than sixty days subsequent to the date
of such publication, when such rules shall go into opera-
tion, and thereafter all appointments to oilice and selec-
tions for employment shall be made according to said rules
in cases to which said rules apply.
Chiefexaminer SECT. 20. The said commissioners may appoint a chief
to be appointed.
A'YISPdGd’ examiner, who shall, under their direction, superintend
0. 1H and 351,
gecégggggslg- any examination under this act, and shall perform such
and 13- other duties as they may prescribe. Such chief examiner
shall receive a salary of twenty-five hundred dollars a year,
and shall be paid his necessary travelling expenses in-
Sw'ewry. curred in the discharge of his ofiicial duty. They may
also employ a secretary, at a salary not exceeding twelve
hundred dollars a year. They may designate persons in
the ofiicial service of the Commonwealth or of any city,
who shall, with the consent of the head of department or
oflice in which any such person serves, act in any examina—
tion held under this act. But no person shall serve as
examiner of candidates for ofiice under the provisions of
this act, when any relative or connection by marriage,
within the degree of first cousin, shall be an applicant.
Expresses of The said commissioners may also incur such expense, n01;
commmmnm' exceeding fifteen hundred dollars a year, as may be proper
for printing and stationery and other incidental matters.
CIVIL SERVICE LAW.
SECT. 21. The said commissioners shall be provided,
under the direction of the governor and council, with an
office, properly furnished, in the state house or Common-
wealth building, suitable for the performance of the duties
imposed by this act.
SECT. 22. The name and residence of every person
appointed, employed or promoted to or in any position
coming within the rules established as herein provided,
except laborers, together with the name or description of
such position and the subsequent rejection or discharge
of every such person, shall forthwith be reported to the
said commissioners by the officer making such appoint-
ment, promotion, rejection or discharge, or providing such
employment.
SECT. 23. The said commissioners shall keep records
of all their proceedings and of all examinations made by
them or under their authority, and all recommendations
of applicants for office received by said commissioners or
either of them, or by any oflicer having authority to make
appointments to office or to employ laborers, or others
coming within the scope of the rules established as afore-
said, shall be kept and preserved, and all such records
and recommendations shall, subject to such reasonable
regulations as may be approved by the governor and coun-
cil, be open to public inspection.
SECT. 24. Whoever, after a rule has been duly estab-
lished and published according to the provisions of this
act, makes an appointment to office or selects a person for
employment contrary to the provisions of such rule, or
wilfully refuses or neglects otherwise to comply with or to
conform to the provisions of this act, or violates any of
such provisions, shall be liable to a penalty of not less
than one hundred nor more than one thousand dollars for
each offence. [Approved June 3, 1884.
C. 2, Resolves
1885.
C. 34, Resolves
1892.
Name and
residence of
every person
appointed, etc.,
to be reported to
commissioners.
Commissioners
to keep records.
Penalty .
10 MASSACHUSETTS CIVIL SERVICE.
[Chapter 437, Acts of 1887.]
AN ACT GIVING PREFERENCE IN APPOINTMENTS TO OFFICE
TO HONORABLY DISCHARGED SOLDIERS AND SAILORS WITH-
OUT CIVIL SERVICE EXAMINATIONS.
Be it enacted, etc., as follows :
fiegilalgdéts of [SECTION 1. All persons who served in the army or
39:‘; 23886 navy of the United States in the time of the war of the
rebellion, and were honorably discharged therefrom, may
be preferred for appointment to office or employment in
the service of the Commonwealth, or the cities thereof,
without having passed any examination provided for by
_ chapter three hundred and twenty of the acts of the year
eighteen hundred and eighty-four, or by the rules of the
civil service commission made under the provisions of said
act. Age, loss of limb or other physical impairment,
which shall not in fact incapacitate, shall not be deemed
cause to disqualify under this act. But nothing herein
contained shall be construed to prevent such persons from
making application for such examination, or from taking
such examination, provided they are entitled to do so
under the rules of said commission.
SEoT. 2. This act shall take effect upon its passage.]
[Approved June 16, 1887.
[Chapter 41, Acts of 1888.]
AN AoT To ESTABLISH THE SALARY OF THE SECRETARY OF
THE orvn. SERVICE COMMISSION.
Be it enacted, etc., as follows :
Repealed, [SECTION 1. The salary of the secretary of the civil
c. 177, Acts of _ . . . . .
£18; 128cc Servlce Commlssmn, beginning with the first day of January
in the year eighteen hundred and eighty-eight, shall be
fifteen hundred dollars a year, and at the same rate for
any portion of a year.
SE01‘. 2. This act shall take effect upon its passage.]
[Approved February 16, 1888.
CIVIL SERVICE LAW.
11
[Chapter 253, Acts of 1888.]
AN ACT 'ro AMEND AN ACT TO IMPROVE THE CIVIL sna-
VICE on THE COMMONWEALTH AND THE CITIES THEREOF.
Be it enacted, etc., as follows :
SECTION 1. Section nineteen of chapter three hundred
and twenty of the acts of the year one thousand eight hun-
dred and eighty-four is hereby amended to read as fol-
lows : —- Section 19. All rules established as hereinbefore
provided, and all changes therein, shall forthwith be
printed for distribution by said commissioners, and a cer-
tified copy thereof shall be sent to the mayor of each city
to which such rules or changes therein relate, and the
same shall be published in one or more newspapers, and
in any such publication of rules shall be specified the date,
not less than sixty days subsequent to the date of such
publication, when such rules shall go into operation, and
thereafter all appointments to office and selections for
employment shall be made according to said rules in cases
to which said rules apply.
SE01‘. 2. This act shall take effect upon its passage.
[Approved April 20, 1888.
[Chapter 334, Acts of 1888.]
AN Aer RELATIVE TO THE DISCHARGE on PERSONS AP-
POINTED UNDER THE CIVIL SERVICE LAW.
Be it enacted, etc, as follows:
Section four of chapter three hundred and twenty of the
acts of the year eighteen hundred and eighty-four is hereby
amended by striking out the last clause thereof, so that as
amended said section shall read as follows : —Section 4.
No person shall be appointed to, or employed in, any
office to which the provisions of this act are applicable,
within one year after his conviction of any offence against
the laws of this Commonwealth.
[Approved May 15, 1888.
Publication of
rules.
Persons con-
victed of
offence.
12
MASSACHUSETTS CIVIL SERVICE.
Salary of
secretary.
Statements in
application
nder
oath.
[Chapter 177, Acts of 1889.]
AN A0T To ESTABLISH THE SALARY on THE SECRETARY or
THE orvn. SERVICE COMMISSION.
Be it enacted, etc., as follows :
Sncrron 1. The salary of the secretary of the civil ser-
vice commission shall be two thousand dollars a year, to
be so allowed from the first day of January in the year
eighteen hundred and eighty-nine, and at the same rate
for any portion of a year.
SECT. 2. This act shall take effect upon its passage.
[Approved March 28, 1889.
[Chapter 183, Acts of 1889.]
AN A0T To AMEND AN ACT To IMPROVE THE CIVIL SER-
VICE OF THE COMMONWEALTH AND THE CITIES THEREOF.
Be it enacted, etc., as follows :
SECTION 1. Section seventeen of chapter three hundred
and twenty of the acts of the year eighteen hundred and
eighty-four is hereby amended by inserting after the word
“facts” in the third line of said section the words:—
under oath, —- so that as amended said section shall read
as follows : — Section 17. Every application, in order to
entitleiehe Aapplieantaeappear~for~~exanaiaatiea~or to ‘be.
examined, must state the facts under oath on the follow-
ing subjects: 1. Full name, residence, and post office
address. 2. Citizenship. 3. Age. 4. Place of birth. 5.
Health and physical capacity for the public service. 6.
Right of preference by reason of military or naval service.
7. Previous employment in the public service. 8. Busi-
ness or employment and residence for the previous five
years. 9. Education. Such other information shall be
furnished as may reasonably be required touching the
applicant’s fitness for the public service.
SEcT. 2. This act shall take efiect upon its passage.
[Approved March 29, 1889.
CIVIL SERVICE LAW.
13
[Chapter 351, Acts Of 1889.]
AN ACT To ESTABLISH THE SALARY OF THE CHIEF Ex-
AMINER OF THE CIVIL SERVICE COMMISSION.
Be it enacted, etc., as follows .-
SECTION 1. The salary of the chief examiner of the
civil service commission, beginning with the first day of
January in the year eighteen hundred and eighty-nine,
shall be three thousand dollars a year.
SECT. 2. This act shall take effect upon its passage.
[Approved May 21, 1889.

[Chapter 352, Acts of 1889.]
AN ACT PLACING ENGINEERS AND OTHERS HAVING CHARGE
OF STEAM BOILERS IN SCHOOL BUILDINGS IN THE CITY
OF BOSTON UNDER CIVIL SERVICE RULES.
Be it enacted, etc., as follows :
SECTION 1. Engineers, janitors and all persons having
charge of steam boilers and furnaces in the school build-
ings in the city of Boston shall be classified and appointed fi d
pursuant to the provisions of chapter three hundred and
twenty of the acts of the year eighteen hundred and eighty-
four, entitled, An Act to improve the civil service of the
Commonwealth and the cities thereof, and the rules of the
civil service commissioners made and established there-
under.
SECT. 2. This act shall take effect upon its passage.
[Approved May 21, 1889.

[Chapter 473, Acts of 1889.]
AN ACT TO GIVE HONORABLY DISCHARGED SOLDIERS AND
SAILORS PREFERENCE IN APPOINTMENTS To OFFICE UNDER
CIVIL SERVICE RULES.
Be it enacted, etc., as follows :
[SECTION 1. In all cases of certification for appoint-
ment of examined persons under the civil service rules in
accordance with the provisions of chapter three hundred
Salary of chief
examiner.
Engineers and
janitors of
school buildings
in Boston classi-
e I
Repealed, c. 617,
Acts of 1896.
See page 23.
14
MASSACHUSETTS CIVIL SERVICE.
Commissioners
may summon
witnesses.
and twenty of the acts of the year eighteen hundred and
eighty-four, persons certified who have served in the army
or navy of the United States in time of war and been
honorably discharged therefrom shall be appointed in
preference to other persons certified who have not a higher
standing on the eligible list.
SEcT. 2. This act shall take effect upon its passage.]
[Approved Jane 7, 1889.

[Chapter 140, Acts of 1891.]
AN ACT TO AUTHORIZE THE CIVIL SERVICE COMMISSIONERS
TO SUMMON WITNESSES AND TAKE TESTIMONY.
Be it enacted, etc., as follows :
The civil service commissioners or any of them, in all
cases requiring investigation by them, may summon wit-
nesses in behalf of the Commonwealth, and may administer
oaths and take testimony in such cases. The fees of such
witnesses for attendance and travel shall be the same as
for witnesses before the superior court, and shall be paid
from the appropriation for the incidental expenses of the
commissioners. Any justice of the superior court, either
in term time or vacation, upon application of the commis-
sioners, may in his discretion compel the attendance of
such witnesses and the giving of testimony before the com-

*"nasi'on—asin [the same—Raina awn—d" to same extent
as before said court. [Approved March 28, 1891.
[Chapter 95, Acts of 1893.]
AN ACT TO DEFINE EXEMPTIONS FROM THE CIVIL SERVICE
RULES.
Be it enacted, etc., as follows :
Section fifteen of chapter three hundred and twenty of
the acts of the year eighteen hundred and eighty-four is
hereby amended by striking out in the first line of said
section, the words “ elective or ”, by inserting after the
words “and officers”, in said first line, the words:—
who are elected by the people or a city council or, — by
striking out in the third line, the words “ a city council or
a school committee”, and inserting in place thereof the
CIVIL SERVICE LAW.
15
words:— of the Commonwealth, or the city council of
any city, ofiicers who are elected by either branch of the
general court and the appointees of such ofiicers,—by
striking out after the word- “principal”, in the fourth
line, the words “ department in ”, and inserting in place
thereof the words : —departments of the Commonwealth
or of, —- by striking out in the fourth, fifth and sixth lines,
the words “ofi‘icers for the faithful discharge of whose
duties a superior oficer is required to give bond ”, and in-
serting in place thereof the wordsz—the employees of
the treasurer of the Commonwealth, and of the treasurer
and collector of taxes of any city, two employees of the
city clerk of any city,-—by striking out in the seventh
line, the words “ private secretary ”, and inserting in place
thereof the words : — secretaries and confidential stenog-
raphers,- by striking out in the eighth line, the words
“ election or ”, and inserting after the word “ selection ”,
in said line, the words :—or appointment, —— by inserting
after the word “commissioners”, in the eleventh line,
the word :— and, — by striking out in said eleventh line
the words “ superintendents and ”, by striking out after
the word “ marshals ”, in the twelfth line, the words “ of
police departments and chief engineers of”, and inserting
in place thereof the words : —— or chiefs of police and, —-
so as to read as follows : —Section 15. Judicial officers
and ofiicers who are elected by the people, or a city coun-
cil, or whose appointment is subject to confirmation by
the executive council of the Commonwealth, or the city
council of any city, officers who are elected by either
branch of the general court and the appointees of such
officers, heads of any principal departments of the Com-
monwealth or of a city, the employees of the treasurer of
the Commonwealth, and of the treasurer and collector of
taxes of any city, two employees of the city clerk of any
city, teachers of the public schools, the secretaries and
confidential stenographers of the governor or of the mayor
of any city, shall not be affected as to their selection or
appointment by any rules made as aforesaid, but such
rules shall apply to members of the police and fire depart-
ments, other than police and fire commissioners and chief
marshals, or chiefs of police and fire departments.
[Approved March 17, 18.93.
Officers ex-
empted from
classification.
16
MASSACHUSETTS CIVIL SERVICE.
Truant officers
in Boston
classified.
Civil service law
made applicable
to certain
towns.
[Chapter 2533, Acts of 1893.]
AN A0T PLACING TRUANT OFFICERS IN THE CITY or BOS—
ToN UNDER orvn. SERVICE RULES.
Be it enacted, etc., as follows :
SE0TIoN 1. All truant officers hereafter appointed by
the school committee of the city of Boston, as provided in
section eleven of chapter forty-eight of the Public Stat-
utes, shall be classified and appointed pursuant to the pro-
visions of chapter three hundred and twenty of the acts of
the year eighteen hundred and eighty-four and the rules
of the civil service commissioners made and established
thereunder.
SE0T. 2. This act shall take effect upon its passage.
[Approved April 24, 1893.
[Chapter 26?. Acts of 1894.]
AN ACT EXTENDING THE PROVISIONS OF THE CIVIL SER-
VICE ACT TO TOWNS HAVING A POPULATION OF TWELVE
THOUSAND INHABITANTS OR OVER.
Be it enacted, etc , as follows :
SE0T10N 1. The provisions of chapter three hundred
and twenty of the acts of the year eighteen hundred and
eight'yT-TGuFeI—ititledfi“ An act to improvesthe—civik service
of the Commonwealth and the cities thereof”, and of all
acts in amendment thereof and in addition thereto, are
hereby extended and made applicable to all towns of the
Commonwealth having a population of twelve thousand
inhabitants or over.
SE0T. 2. This act shall take effect in any such town
upon its acceptance by a majority of the legal voters of
said town present and voting thereon at a town meeting
called for the purpose. [Approved April 17, 1894.
CIVIL SERVICE LAW.
17
[Chapter 376, Acts of 1895.]
AN ACT TO AUTHORIZE THE APPOINTMENT OF A REGISTRAR
OF LABOR.
Be it enacted, etc., as follows :
SECTION 1. The civil service commissioners are author-
ized to appoint a registrar of labor, who shall under their
direction supervise the administration of civil service rules
applicable to the public labor service of the Common-
wealth or any city thereof. He shall receive an annual
salary of two thousand dollars and be allowed his actual
travelling expenses incurred in the discharge of his Official
duties. The salary and travelling expenses for the cur-
rent year shall be paid from the appropriation for clerical
assistance and travelling expenses of the civil service com—
missioners as authorized by chapter thirteen of the acts
of the present year.
SECT. 2. This act shall take effect upon its passage.
[Approved May 11, 1895.
[Chapter 501, Acts of 1895.] .
AN ACT RELATIVE To THE PREFERENCE OF VETERANS FOR
EMPLOYMENT IN THE PUBLIC SERVICE.
Be it enacted, etc., as follows :
[SECTION 1. The sixth clause of section fourteen of
chapter three hundred and twenty of the acts of the year
eighteen hundred and eighty-four is hereby amended by
striking out in the second line the words “ other qualifica-
tions being equal,” and adding at the end of said clause
the words : -—And it shall be the duty of the civil service
commissioners to cause the names of veterans, who hav-
ing been examined and found qualified for appointment to
the position for which they have applied, to be placed
upon the eligible list in the order of their respective stand-
ing above the names of all other persons. Such commis-
sion shall cause to be certified to the appointing officers,
for appointment, the names of veterans in preference to
all others so long as there are names of veterans upon the
eligible list; and veterans so certified shall be appointed
Oflice of regis-
trar of labor
established.
Repealed,
c. 517, Acts of
1896. See
page 24.
18
MASSACHUSETTS CIVIL SERVICE.
in preference to those who are not veterans. But nothing
herein contained shall be construed to prevent the certifi-
cation and employment of women, — so as to read as
follows:—
Sz'wth, For giving preference in appointments to office
and promotions in oflice to applicants who served in the
army or navy of the United States in time of war and have
been honorably discharged therefrom. And it shall be
the duty of the civil service commissioners to cause the
names of veterans, who having been examined and found
qualified for appointment to the position for which they
have applied, to be placed upon the eligible list in the
order of their respective standing above the names of all
other persons. Such commission shall cause to be certi-
fied to the appointing officers, for appointment, the names
of veterans in preference to all others so long as there are
names of veterans upon the eligible list; and veterans
so certified shall be appointed in preference to those who
are not veterans. But nothing herein contained shall be
construed to prevent the certification and employment of
women.
Sun 2. Veterans who have made application for em-
ployment in the public service in accordance with the sec-
ond section of rule twelve of the civil service rules shall
Abeprfilfd for certification and appointment in prefer-
ence to all‘rihgerippms“ not? veterans, except women:
provided, that the age limit now established by the civil
service rules, with regard to appointments in the police
and prison service and fire departments, may be applied
to such appointments.
SEoT. 3. Section one of chapter four hundred and
seventy-three of the acts of the year eighteen hundred and
eighty-nine is hereby amended by striking out all of said
section, after the word “ certified ”, in the eighth line, -
so as to read as follows:-—Section 1. In all cases of
certification for appointment of examined persons under
the civil service rules in accordance with the provisions of
chapter three hundred and twenty of the acts of the year
eighteen hundred and eighty-four, persons certified who
have served in the army or navy of the United States in
time of war and been honorably discharged therefrom shall
be appointed in preference to other persons certified.
CIVIL SERVICE LAW.
19
SE01‘. 4. The civil service commission shall, within
five days after any examination or certification of can-
didates for positions in the public service, cause a list of
the names of the persons examined or certified, with the
standing attained in the examination, to be prepared, and
said list shall be open to the inspection of the public be-
tween the hours of ten in the forenoon and two in the after-
noon of each day.
SE01". 5. Whoever violates any provision of this act
shall be punished by a fine of not less than fifty dollars
nor more than five hundred dollars.
SECT. 6. The word “ application ”, as used in this act,
shall be construed to mean a petition for employment, con-
taining a sworn statement by the applicant that he is quali-
fied to perform the duties of the position which he seeks,
and accompanied by certificates from three citizens of
good repute in the community stating that they know said
applicant to be fully competent to perform the duties of
the position sought. The word “ veteran”, as used in this
act, shall be construed to mean a person who served in the
United States army or navy during the war of the rebel-
lion and was honorably discharged therefrom.
SE01‘. 7. All acts and parts of acts inconsistent here-
with are hereby repealed]
[This bill, returned by the Governor to the House of Rep-
resentatives, the branch in which it originated, with his
objections thereto, was passed by the House June 3, and, in
concurrence, by the Senate June 4, the objections of the
Governor notwithstanding, in the manner prescribed by the
Constitution; and thereby has the “force of a law.”]
[Chapter 256, Acts of 1896.]
AN ACT RELATIVE TO APPOINTMENTS IN THE BOSTON FIRE
DEPARTMENT.
Be it enacted, etc., as follows .-
SECTION 1. All call members in the Boston fire depart-
ment who have served three or more successive years in
said service shall, upon application to the civil service
commissioners, be placed upon the eligible list for appoint-
ment as permanent men, without any further examination.
Call men in Bos-
ton fire depart-
ment.
20
MASSACHUSETTS CIVIL SERVICE.
Fire applicants,
Boston, mini-
mum height.
Classification of
laborers in
cities.
The fire commissioner may at his discretion appoint such
men on the permanent force, at the same salary as a per-
manent man who has served three or more years in said
service.
SE0T. 2. This act shall take effect upon its acceptance
by the city government of the city of Boston.
[Approved April 9, 1896.

[Chapter 424, Acts of 1896.]
AN ACT RELATIVE TO THE QUALIFICATIONS OF FIREMEN.
Be it enacled, etc, as follows :
SEOTION 1. Persons five feet five inches in height, and
over, shall be eligible to appointment on the fire force of
the city of Boston, if otherwise qualified; and no rules
shall be made by the civil service commissioners in con-
flict with the provisions of this section.
SE0T. 2. This act shall take effect upon its passage.
[Approved May 21, 1896.
[Chapter 449, Acts of 1896]
AN AOT RELATIVE TO THE EMPLOYMENT OF LAEoRERs IN
THE CITIES OF THE OOMMONWEALTH.
Be itenacteditg, gs follows :
SECTION 1. So much of chapter ‘tlfi'ee‘hundredr and
twenty of the acts of the year eighteen hundred and eighty-
four and the amendments thereto as relates to the employ-
ment of laborers by cities, and that portion of the civil
service rules of the Commonwealth and the cities thereof
as authorized by said acts and designated therein as the
“ Labor Service”, shall not take effect in cities of less
than one hundred thousand population, except upon ac-
ceptance by the city council of such city, with the approval
of its mayor: provided, that the city council of such cities
shall establish rules under which veterans of the late war
of the rebellion shall be given the preference in employ-
ment.
SE0T. 2. This act shall take effect upon its passage.
[Approved May 28, 1896.
CIVIL SERVICE LAW.
21
[Chapter 502, Acts Of 1896-]
AN ACT RELATIVE TO THE CIVIL SERVICE OF THE COMMON-
WEALTH AND THE CITIES THEREOF.
Be it enacted, etc., as follows :
SECTION 1. Section fifteen of chapter three hundred and
twenty of the acts of the year eighteen hundred and eighty-
four, as amended by chapter ninety-five of the acts of the
year eighteen hundred and ninety-three, is hereby amended
by inserting after the word “ Commonwealth”, in the
ninth line, the wordsz—the employees of the board of
commissioners of savings banks,—so that the section
as amended will read as follows :—Section 15. Judicial
officers and officers who are elected by the people, or a
city council, or whose appointment is subject to confirma-
tion by the executive council of the Commonwealth, or
the city council of any city, officers who are elected by
either branch of the general court and the appointees of
such officers, heads of any principal departments of the
Commonwealth or of a city, the employees of the treas-
urer of the Commonwealth, the employees of the board
of commissioners of savings banks, and of the treasurer
and collector of taxes of any city, two employees of the
city clerk of any city, teachers of the public schools, the
secretaries and confidential stenographers of the governor
or of the mayor of any city, shall not be affected as to
their selection or appointment by any rules made as afore-
said, but such rules shall apply to members of the police
and fire departments, other than police and fire commis-
sioners and chief marshals, or chiefs of police and fire
departments.
SECT. 2. This act shall take effect upon its passage.
[Approved June 5, 1896.

[Chapter 517, Acts of 1896-]
AN ACT RELATIVE TO THE PUBLIC SERVICE OF THE COM-
MONWEALTH AND THE CITIES AND TOWNS THEREOF, AND
THE EMPLOYMENT OF VETERANS THEREIN.
Be it enacted, etc, as follows :
SECTION 1. The word “veteran”, in this act shall
mean a person who served in the army or navy of the
Officers ex-
empted from
classification.
Veteran ; mean.
ing word.
22
MASSACHUSETTS CIVIL SERVICE.
May apply for
examination.
Commissioners
to cause veter-
ans to be certi-
fied in prefer-
ence to appli-
cants not
veterans.
Veterans may
apply for ap-
pointment with-
out examina-
tion.
List of appli-
cants passing
examination to
be prepared, etc.
United States in the time of the war of the rebellion and
was honorably discharged therefrom.
SE01". 2. Veterans may apply for examination for any
position in the public service classified under chapter three
hundred and twenty of the acts of the year eighteen hun-
dred and eighty-four and acts in amendment thereof, and
the civil service rules thereunder, subject to said rules;
and if such veterans pass the examination they shall be
preferred in appointment to all persons not veterans; and
it shall be the duty of the civil service commissioners to
cause the names of veterans passing examination to be
placed upon the eligible list for the position sought, in the
order of the respective standing of such veterans, above
the names of all applicants not veterans. The commis-
sioners shall cause to be certified to the appointing otficers
for appointment the names of all such veterans in pref-
erence to applicants not veterans, so long as there are
names of veterans upon the eligible list, and the appoint-
ment shall be made from the list so certified. But nothing
herein contained shall be construed to prevent the certifi-
cation and employment of women.
SE01‘. 3. Veterans may apply for appointment to or
for employment in any position in the public service, classi-
fied as aforesaid, without examination. In such applica-
tion such veteran shall state under oath such facts as may
~bemequired~by~theeivilservice rules. _Age, loss _of limb
or other physical impairment, which shall not in fact in-
capacitate, shall not disqualify such veteran from appoint-
ment under this section. Appointing oflficers may by
requisition call for the names of any or all such veterans
so applying without examination, and appoint or employ
any of them in the office or position sought.
SEcT. 4. The civil service commissioners, within five
days after the final markings upon any examination of
applicants for positions in the public service, shall cause
a list of the names of applicants passing the examination,
to be prepared, showing the standing of each obtained in
the examination; they shall also within five days after
any certification of persons for appointments or employ-
ment, cause a list of the names of the persons so certified
to be prepared, and said lists shall be open to public in-
spection during the office hours of the commissioners.
CIVIL SERVICE LAW.
23
SE01‘. 5. No veteran holding an office or employment
in the public service of any city or town of the Common-
wealth shall be removed or suspended, or shall without
his consent be transferred from such office or employment,
except after a full hearing before the mayor of such city
or before the selectmen of such town, and at such hearing
the veteran shall have the right to be present and to be
represented by counsel. Such removal, suspension or
transfer shall be made only upon the written order of the
mayor or of the selectmen.
SECT. 6. The civil service commissioners shall estab-
lish rules to secure the employment of veterans in the
labor service of the Commonwealth and of the cities and
towns thereof, in the class for which they make applica-
tion, in preference to all other persons, except women.
The civil service commissioners may recognize an age
limit in certifying persons for employment in the labor
service, provided the appointing officer shall certify in his
requisition that the work to be performed is so arduous as
to require the services of young and vigorous men, and
provided also that the commissioners shall upon investiga-
tion become satisfied that such certificate is true. In
towns and cities in which the civil service act and the
rules of the civil service commissioners have not been
applied to the labor service the selectmen of the towns
and the city councils of the cities shall take such action
as may be necessary to secure the employment of veterans
in the labor service of their respective towns and cities, in
preference to all other persons, except women. Citizens
of Massachusetts who have distinguished themselves by
gallant and heroic conduct while serving in the army or
navy of the United States, and who have received a medal
of honor from the president of the United States, shall be
deemed to be veterans under the meaning of this act and
shall receive all the benefits thereof.
SECT. 7. Whoever violates any provision of this act
shall be punished by a fine of not less than one hundred
nor more than one thousand dollars for each offence.
SECT. 8. Chapter four hundred and thirty-seven of the
acts of the year eighteen hundred and eighty-seven, chap-
ter four hundred and seventy-three of the acts of the year
eighteen hundred and eighty-nine, chapter five hundred
Veterans not to
be removed
without a bear-
g.
Commissioners
to establish
rules.
Certain persons
to be deemed
veterans.
Penalty.
Repeal.
24
MASSACHUSETTS CIVIL SERVICE.
Somerville fire
department.
Labor service.
\.I\'
‘I
and nineteen of the acts of the year eighteen hundred and
ninety-four, the words “ other qualifications being equal”,
in the sixth clause of section fourteen of chapter three
hundred and twenty of the acts of the year eighteen hun-
dred and eighty-four, and chapter five hundred and one
of the acts of the year eighteen hundred and ninety-five,
are hereby repealed.
SEOT. 9. This act shall take effect upon its passage.
[Approved June 9, 1896.
[Chapter 209, Acts of 1897.]
AN ACT RELATIVE TO APPOINTMENTS IN THE SOMERVILLE
FIRE DEPARTMENT.
Be it enacted, etc, as follows:
SEOTION 1. All members of the Somerville fire depart-
ment, known as call members, who were appointed before
the enactment of chapter three hundred and twenty of the
acts of the year eighteen hundred and eighty-four, and
who have continued three or more years in said service,
shall, upon application to the civil service commissioners,
be placed upon the eligible list for appointment as per-
manent men, without any further examination.
SE0T. 2. The mayor may at his discretion appoint such
fnéh on the ‘permanentvforceat the—Samesalary as a per-
manent man who has continued three or more years in said
service.
SE0T. 8. This act shall take effect upon its acceptance
by the city government of the city of Somerville.
[Approved March 29, 1897.
[Chapter 828, Acts of 1897.]
AN AOT RELATIVE TO THE REGISTRATION BY THE oIvIL
SERVICE OOMMISSIONERS 0F APPLICANTS FOR LABOR.
Be it enacted, eta, asfoltows :
SEOTION 1. Applicants for positions in the labor ser-
vice of the Commonwealth or of the cities thereof Shall be
allowed to register, to the number of five hundred, On the
CIVIL SERVICE LAW.
25
first Monday of February, May, August, and November
in each year, at the places appointed for the registry of
such applicants, and any rules heretofore made by the
civil service commissioners which are inconsistent with
the provision of this act are hereby annulled.
SECT. 2. This act shall take effect upon its passage.
[Approved April 29, 1897.
[Chapter 447, Acts of 1898.]
AN ACT RELATIVE To ENLISTMENTS IN THE ARMY AND
NAVY OF THE UNITED STATES.
Be it enacted, etc., as follows:
SECTION 1. Heads of departments, boards, commis-
sions and superintendents of state institutions having in
their employ men who desire to enlist under the call of
the president of the United States for Service in the war
now existing between the United States and Spain are
hereby authorized to grant leave of absence, without pay,
to men mustered into the volunteer service of the United
States, until they are honorably discharged therefrom;
and Said officials are hereby authorized to fill temporarily
any vacancies occurring by reason of such mustering into
the United States service.
SECT. 2. This act Shall take effect upon its passage.
[Approved May 20, 1898.
[Chapter 454, Acts of 1898.]
AN ACT TO ALLOW THE RESTORATION TO THE PUBLIC SER-
VICE OF PERSONS LEAVING IT FOR MILITARY SERVICE IN
TIME OF ‘VAR.
Be it enacted, etc, as follows :
Any person appointed to or employed in the public ser-
vice of the Commonwealth or of any city thereof, classi-
fied under the civil service rules made under the provisions
of chapter three hundred and twenty of the acts of the
year eighteen hundred and eighty-four and acts in amend-
ment thereof, who'may resign or leave Such service for the
Leave of ab-
sence may be
granted em-
ployees mus-
tered into the
United States
service, etc.
Certain persons
may be restored
to public service
without civil
service exami-
nation.
26
MASSACHUSETTS CIVIL SERVICE.
Attorney-gen-
eral may file an
information in
certain cases.
purpose of enlisting and serving in the army or navy of
the United States, or in the militia of the Commonwealth
in time of war, may at any time within one year after his
honorable discharge from such military or naval service
be appointed to his former position or employment in the
public service, or to a similar position, without applica-
tion or examination under the civil service rules.
[Approved May 24, 1898.
[Chapter 376, Acts of 1899.]
AN ACT TO PROVIDE FOR THE BETTER ENFORCEMENT OF
THE LAWS RELATIVE TO THE CIVIL SERVICE.
Be it enacted, etc., as follows :
The attorney-general may file in the supreme judicial
court an information in the nature of quo warranto against
any person holding or claiming the right to hold an office
or employment, the salary or compensation of which is
payable from the treasury of the Commonwealth or of a
county or of any city or town of the Commonwealth, and
the supreme judicial court shall have jurisdiction to hear
and determine the same. [Approved rlIay 19, 1899.
SUPREME JUDICIAL COURT DECISIONS. 27
DECISIONS OF THE SUPREME JUDICIAL COURT.

OPINION on THE JUSTICES TO THE HoUsE OF REPRESENTATIVES.
[138 Mass. 601.]
St. 1884, c. 320, providing for the appointment of commissioners to make rules
for the selection of persons to fill offices in the government of the Com-
monwealth and of the several cities thereof, which are required to be filled
by appointment, and for the selection of persons to be employed as laborers
or otherwise in the service of the Commonwealth, and of the several cities
thereof, and to supervise the administration of such rules, is constitu-
tional; and the Legislature may provide a penalty for the violation of
such rules; and may give them a general or limited application.
The following order was passed by the House of Representatives
on Feb. 10, 1885, and transmitted by the speaker to the justices of
the Supreme Judicial Court, who on February 24 returned the answer
which is subjoined : -—
Whereas, The Legislature of 1884 passed an act entitled “ An act
to improve the civil service of the Commonwealth and the cities
thereof;” and
Whereas, The commissioners appointed under said act have pre-
pared certain rules, herewith submitted, which, having been approved
by the Governor and Council and duly published, are by the terms of
said act soon to go into operation; and
Whereas, This House has pending before it a bill appropriating six
thousand five hundred dollars to defray the expenses of said commis-
sioners in the supervision of the administration of the rules aforesaid,
a substantial portion of which sum is to be expended by said com-
mission in the administration of certain of said rules which have been
given a limited application; and
Whereas, This House, before making any further appropriation for
the purposes of the Civil Service Commission appointed under said
act, desires to be advised as to the constitutionality of certain pro-
visions of said act and said rules; therefore it is ‘
Ordered, That the opinion of the justices of the Supreme Judicial
‘Court be required upon the following important questions of law,
viz. :—
28 MASSACHUSETTS CIVIL SERVICE.
First. —-Are the provisions of said act, which authorize said com-
missioners to prepare rules for the selection of persons to fill certain
offices named in § 2 of said act; which provide for a penalty for the
violation of said rules when established and published, as required by
said act, and which provide that said rules may be given a general
or limited application, —constitutional?
Second—Are the rules prepared by said commissioners and ap-
proved by the Governor and Council, and published as required by
said act, a legal exercise of power lawfully conferred?
Third.—-Are the rules which are made applicable to the city of
Boston only, valid?
The undersigned, justices of the Supreme Judicial Court, have con-
sidered the questions proposed in the order of the Honorable House
of Representatives of the tenth day of February instant, and respect-
fully submit the following opinion : —
The Constitution, in the fourth article of the first chapter of “ the
frame of government,” confers upon the General Court full power
and authority to make all manner of wholesome and reasonable laws
not repugnant to its provisions, to provide for the naming and settling
all civil officers not provided for in the Constitution, and to set forth
the duties, powers, and limits of such officers.
In the exercise of this power the Legislature has the right to pre-
scribe the qualifications of allofi‘icers and servants of the public not
providgdfor in the Constitution.
From the natuiTe of‘tlEbas—eJma—duty (if—determining and~ascertain-
ing the qualifications of such officers and servants cannot be per-
formed directly by the Legislature, but must be delegated to some
oflicers or agents. It has been the constant and necessary practice of
the Legislature to confer the power of appointing such subordinate
ofiicers and servants upon some superior officers of the State, or upon
the authorities of the cities or towns, leaving the question of the
qualifications of the persons to be appointed entirely to the discretion
of the appointing power.
The object of the statute before us is to provide for a Board of
Commissioners, who shall make rules for the selection of persons to
fill such offices in the government of the Commonwealth, and of the
several cities thereof, and supervise the administration of such rules.
We think that the Legislature has the constitutional right to pro-
vide for the appointment of such commissioners, and to delegate to
them the power to make rules, not inconsistent with existing laws, to
guide and control their discretion and the discretion of the officers of
SUPREME JUDICIAL COURT DECISIONS. 29
the State or of the cities in whom the appointing power is vested.
This is not a delegation of the power to enact laws; it is merely a
delegation of administrative powers and duties.
And there is no provision of the Constitution which prevents the
Legislature from enacting that such rules, when duly made, shall be
binding upon the Oflicers and citizens to whom they apply, and that
they may be enforced by suitable penalties, as provided in the last
section of the statute.
The provision of the fourteenth section of the statute, that the rules
“ may be given a general Or a limited application,” is not open to any
constitutional objection.
The power of the Legislature to make or to authorize local laws for
the administration of local affairs is beyond question. It has the
right to make local laws to meet the peculiar exigencies of any part
of the community.
The qualifications required to fill an ofiice in one place may be dif-
ferent from those required for a similar ofiice in other places, and
different rules of examination may be required. We have no doubt
that the Legislature, or the commissioners acting under its authority,
can make valid rules for the city of Boston differing from those which
are found to be reasonable and wise in other localities.
We do not Suppose it was the intention of the House to require us
to examine every one of the numerous rules made by the commission-
ers, and to give an opinion upon the validity of each. The preamble
of the order states that the House “desires to be advised as to the
constitutionality of certain provisions of said act and said rules.”
We interpret the Second and third questions, therefore, as designed
to ask whether it is a legal exercise of power, lawfully conferred, for
the commissioners to make rules consistent with existing laws, and
whether they can make rules applicable only to the city of Boston.
With this understanding of their Scope Of the questions, we answer
each of the three questions in the afiirmative.
Mr. Justice Colburn has been prevented by illness from consider-
ing the questions proposed, and therefore does not join with us in the
opinion. MARCUS MORTON.
WALBRIDGE A. FIELD.
CHARLES DEVENS.
WILLIAM ALLEN.
CHARLES ALLEN.
OLIVER WENDELL HOLMES, Jr.
FEB. 24, 1885.
30 MASSACHUSETTS CIVIL SERVICE.
ATTORNEY-GENERAL v. MAYOR AND ALDERMEN or NORTHAMPTON.
[143 Mass. 589.]
Sufiolk, Nov. 11, 18,86—Feb. 24, 1887. Holmes and Gardner,
JJ., absent.
Certiorari does not lie to quash the proceedings of the municipal authorities
of a city in appointing a police officer, in alleged violation of the rules
established by St. 1884, c. 320, for the improvement of the civil service
of the Commonwealth.
Petition, filed April 12, 1886, by the Attorney-General, at the re-
lation of the Civil Service Commissioners of the Commonwealth,
appointed under St. 1884, c. 320, for a writ of certiorari to quash the
proceedings of the respondents in the matter of the appointment of a
police officer of Northampton, said appointment being alleged to be in
violation of the rules prepared by said commissioners.
The case was heard by W. Allen, J ., and reserved for the con-
sideration of the full court.
E. J. SHERMAN, Attorney-General, and H. N. SHEPARD, Assistant
Attorney-General, for the petitioner ; T. G. SPAULDING, for the
respondents.
MORTON, C.J. We are of opinion that the petitioner has mistaken
his remedy in this case. As was stated by Chief Justice Gray in
“1.991(2). Selectmen of Lexington, 122 Mass. 290, “ A writ of certiorari
lies only to correct th—e—ei'firb ‘andvrestrain theexcesses of jurisdiction
of inferior courts or officers acting judicially.” It lies to correct the
errors of inferior courts, or judicial ofiicers, acting in proceedings not
according to the course of the common law, and where errors cannot
be corrected by appeal, or exceptions, or by a writ of error. Lynch
v. Crosby, 134 Mass. 313.
Thus it is the proper remedy to revise the proceedings of county
commissioners, or of city councils, or of boards of aldermen, when
they act in matters like the laying out of highways, or making assess-
ments for sewers or other improvements. The reason is that, in such
matters, they act judicially, and not merely as ministerial or executive
ofificers. Parks v. Boston, 8 Pick. 218. Fay, petitioner, 15 Pick.
243. Robbins v. Lexington, 8 Cash. 292. Dwight v. City Council
of Springfield, 4 Gray, 107. Lowell v. County Commissioners, 6
Allen, 131. Farmington River Water-Power Co. v. County Commis-
sioners, 112 Mass. 206. Powers v. City Council of Springfield, 116
SUPREME JUDICIAL COURT DECISIONS. 31
Mass. 84. Snow v. Fitchburg, 136 Mass. 179. Numerous other
cases might be cited, and they all go to show that the uniform rule in
this Commonwealth is, as we have stated above, that certiorari will
only lie to revise the proceedings of tribunals or officers acting in a
judicial capacity.
The appointment of police ofiicers by the municipal authorities of a
city cannot in any just sense he called a judicial proceeding. It is
an important duty, and, like most administrative duties, involves the
exercise of judgment and discretion ; but it is administrative, and not
judicial, in its character. No one has the right to be heard, and their
decision is not, within the meaning of the law, an adjudication or judi-
cial determination of any question or of the rights of any parties.
Opinion of Justices, 138 Mass. 601.
We are therefore of opinion that certiorari is not the proper remedy.
In this proceeding, it would not be in our power to afford the redress
which the petitioner asks.
Petition dismissed.
32 MASSACHUSETTS CIVIL SERVICE .
OPINION OF THE JUSTIOES TO THE GOVERNOR AND CoUNoIL.
[145 Mass. 587.]
Under St. 1887, c. 437, persons who served in the army or navy of the
United States in the time of the war of the rebellion, and were honorably
discharged therefrom, cannot be preferred for appointment to office or
employment in the service of the Commonwealth or the cities thereof,
Without having made application for appointment to office or employment
to the Civil Service Commissioners, as required by St. 1884, c. 320, and
the rules of the Civil Service Commissioners made thereunder.
The following order was passed by the Governor and Council on
July 20, 1887, and transmitted on the following day to the justices
of the Supreme Judicial Court, who on Sept. 22, 1887 , returned the
answer which is subjoined :—
Whereas, The Civil Service Commissioners have prepared and sub-
mitted to the Governor and Council for approval, pursuant to section
2 of chapter 820 of the Acts of the Legislature for 1884, the follow-
ing additional civil service rule : -—
Amendment of Rules.
Clause 1. — Any person who served in the army or navy of the United
States in the time of the war of the rebellion, and was honorably discharged
therefrom, desiring, under chapter 437 of the Acts of 1887, appointment to
oifice or employment in positions classified under the civil Service rules,
Jvithout hefigpxassed any examination provided for therein, shall file an
application for suclffimihtmentfstatingren—eathe_l.liisxrmlhq._llesidence
and post-office address. 2. The oflice or employment he seeks. 3. ThIeI
time of service in the army or navy, the regiment and company in which,
or the vessel on which, such service was rendered; and the date of his dis-
charge. 4. Whether the applicant habitually uses intoxicating beverages
to excess, or is a vendor of intoxicating liquor. 5. Whether he has within
one year been convicted of any offence against the laws of the Common-
wealth. 6. That he desires appointment or employment without having
passed the examination provided for by the civil service rules.
Such application shall be accompanied by certificates of good moral
character and capacity for performance of the duties of the oflice or em-
ployment.
Such application, if for an ofiice or employment in the service of the
Commonwealth, or the city of Boston, shall be filed in the ofiice of the com-
missioners; if for an ofiice or employment in the service of any other city
than Boston, it shall be filed with the civil Service examiners for such city.
Such applicant, if he expresses a desire not to pass the examination pro-
vided for by the civil service rules, shall be exempt therefrom.
SUPREME JUDICIAL COURT DECISIONS. 33
Clause 2. — When requisition is made by an appointing ofi’icer upon the
commissioners for names of eligible persons for appointment to ofiice or
employment in the public Service, the commissioners shall certify the
names of those most eligible on the proper register, as provided for by the
civil Service rules; and in addition Shall, when so requested by the appoint-
ing officer, report the names of any honorably discharged soldiers or Sailors
of the war of the rebellion, who have filed proper and true applications for
appointment to such office without examination. The appointing oflicer can
appoint from the list of names so certified or reported to him.
And Whereas, The question of the approval of said civil Service
rule is now before the Governor and Council, and they wish to be
advised as to its legality under chapter 437 of the Acts of the Legis—
lature for 1887, — . .
It is therefore ordered, that the opinion of the justices of the
Supreme, Judicial Court be required upon the following important
questions of law: —
F't'rst. —Under chapter 437 of the Acts of the Legislature of 1887 ,
can persons who served in the army or navy of the United States in
the time of the rebellion, and were honorably discharged therefrom,
be preferred for appointment to office or employment in the service
of the Commonwealth, Or in the cities thereof, without having made
application for appointment to oflice or employment to the Civil Ser-
vice Commissioners, as required by chapter 320 of the Acts of the
Legislature for 1884, and the rules of the Civil Service Commissioners
made thereunder?
Second. -— Will the proposed civil Service rule, Set forth as above,
if approved by the Governor and Council, be valid?
To Hts Excellency the Governor and the Honorable Council of the Common-
wealth of Massachusetts
The undersigned, justices of the Supreme Judicial Court, having
considered the questions upon which their opinion is required by the
Governor and Council, respectfully submit the following opinion :—
The statute of 1887 , chapter 437, provides that “all persons who
served in the army or navy of the United States in the time of the war
of the rebellion, and were honorably discharged therefrom, may be
preferred for appointment to office or employment in the service of
the Commonwealth, or the cities thereof, without having passed any
examination provided for by chapter three hundred and twenty of the
acts of the year eighteen hundred and eighty-four, or by the rules of
the civil service commission, made under the provisions of said act.
Age, loss of' limb, or other physical impairment, which shall not in
34 MASSACHUSETTS CIVIL SERVICE.
fact incapacitate, shall not be deemed cause to disqualify under this
act. But nothing herein contained shall be construed to prevent such
persons from making application for such examination, or from tak-
ing such examination, provided they were entitled to do so under the
rules of said commission.”
It seems to us that this statute was intended to be an amendment
of the statute of 1884, chapter 320, usually called the civil service
law, the main purpose being to exempt honorably discharged soldiers
and sailors from the examinations required by that law and the rules
established under it, leaving them subject to the operation of the law
except so far as exempted by the amending act.
This is the natural and obvious meaning of the act of 1887 . If the
Legislature had intended to provide that soldiers and sailors should
be exempted from the operation of the civil service law, it is to be
presumed that it would have said so in direct and explicit language,
as is done in the fifteenth section of the act of 1884, where it is pro-
vided that certain classes of offices “ shall not be affected, as to their
election or selection, by any of the rules made as aforesaid.”
The statute of 1887 does not provide that soldiers and sailors may
be appointed to office or employment without making application to
the Civil Service Commissioners. On the contrary, the structure of
the act shows that it was intended to be engrafted upon and to become
a part of the act of 1884, for the regulation of the civil service. The
language used is “ may be preferred for appointment to office or
employment,” which implies that they are to be selected out of a list
o‘r IIIHHbEr of ‘applicants, andplainly refers to_ the fourteenth section
of the civil service law, providing for giving preference to saoldieIrs and
sailors.
The provision that “age, loss of limb, or other physical impair-
ment, which shall not in effect incapacitate, shall not be deemed cause
to disqualify under this act,” implies that soldiers and sailors were to
remain subject to the civil service law, except so far as expressly
exempted by this act. This provision would be entirely useless if the
purpose of the preceding clause was to take the appointment of sol-
diers and sailors out of the jurisdiction and supervision of the com-
missioners. Considered as a part of the civil service law it has force
and efiect, because it exempts soldiers and sailors from the operation
of the rules of the commissioners, making in certain cases the age
of the applicant a disqualification, and limits the power of the commis-
sioners to make any rules, in the future, which are inconsistent with it.
The civil service law made a radical change in the method of ap-
pointing such officers and servants as are within its scope. Its
SUPREME JUDICIAL COURT DECISIONS. 35
scheme is that all such appointments should be under the supervision
of the Civil Service Commissioners, who are to determine the qualifi-
cations of the applicants for the offices or employment which they
seek. The statute does not attempt to fully define the qualifications
of such officers and servants, but it confers upon the commissioners
the authority to make rules, not inconsistent with law, for their selec-
tion and appointment, which rules, when approved by the Governor
and Council, have the force of laws, and are binding upon the ap-
pointing officers.
The statute and the rules made under it establish certain require-
ments or conditions, which must be complied with before an appoint-
ment will be made. Thus, among other things, it is required that an
application must be made to the Civil Service Commissioners, stat-
ing certain facts as to the name, age, residence and previous history
of the applicant; it is also provided that no person shall be appointed
who is a vendor of intoxicating liquor,'or who habitually uses intoxi-
cating beverages to excess, or who, within one year preceding his
application, has been convicted of any offence against the laws of
this Commonwealth, and that certain officers shall be appointed for
a probationary period. The rules, following the directions of the
statute, further make specific and minute provisions for the personal
examination of the applicant, designed as a test of his attainments
and proficiency in the department of knowledge deemed necessary
for his fitness for the position which he seeks.
The examination of the applicant is an important requirement of
the statute, and of the rules, but it is not the only material require-
ment. It cannot justly be said that the other requirements, to which
we have referred, are parts or incidents of the examination. They
are separate and independent requirements or conditions, and are so
treated throughout the statute and the rules.
The Legislature, in enacting the statute of 1887, had in mind the
civil service law and the rules of the commissioners; the provision
that soldiers and sailors “ may be preferred for appointment to
ofifice or employment in the service of the Commonwealth, or the
cities thereof, without having passed any examination provided for”
by such law and rules, according to the natural import of the words
used, refers to the personal examination provided for by the statute
and the rules. It cannot be held to repeal the statute of 1884, so far
as it relates to soldiers and sailors, or to exempt them from the other
requirements of the statute and rules, without greatly enlarging the
language of the Legislature.
We are therefore of opinion, in answer to the first question pro-
36 MASSACHUSETTS CIVIL SERVICE.
posed, that, under chapter 437 of the Acts of the Legislature of 1887 ,
persons who served in the army or navy of the United States in the
time of the rebellion, and were honorably discharged therefrom, can-
not be preferred for appointment to office or employment in the ser-
vice of the Commonwealth, or the cities thereof, without having made
application for appointment to office or employment to the Civil Ser-
vice Commissioners, as required by chapter 320 of the Acts of the
Legislature of 1884 and the rules of the Civil Service Commissioners
made thereunder.
The second question is general, and points out no particular ques-
tion of law upon which our opinion is desired. We have doubts
whether, within the fair intent of the Constitution, the executive or
legislative departments can submit to the justices a law, or a series
of laws or rules more or less complicated, and ask them to examine
and ascertain what questions can be raised as to the validity of every
clause, and to express an opinion in advance upon every such ques-
tion. The practice always has been for the justices to confine their
answer to the particular questions of law submitted to them.
As the order of the Governor and Council points out no definite
question except the one we have answered, we have considered no
other. If we were to suggest questions which might arise as to the
validity of parts of the rule proposed by the commissioners, and to
express an opinion upon them, it would be going beyond our proper
duty, and might be regarded as an interference with the independence
of the executive department.
H M—rTjImfifieDévensdoes not concur: in this_ opjnionLand requests
us to state that, in his view, the statute of 1887, chapter 437, i5 pro-
viding that the soldiers and sailors therein described may be preferred
for appointment without having passed any examination provided for
by the civil service act, or the rules of the Civil Service Commission-
ers made under the provisions of said act, exempts them from any
investigation by the Civil Service Commissioners of their qualifica-
tions, and leaves them to be determined by the power competent to
appoint; and that they are thus necessarily exempted from making
application for appointment to the Civil Service Commissioners.
MARCUS MORTON.
WALBRIDGE A. FIELD.
WILLIAM ALLEN.
CHARLES ALLEN.
OLIVER WENDELL HoLMEs, Jr.
MARCUS P. KNOWLTON.
Bos'IoN, Sept. 22, 1887.
SUPREME JUDICIAL COURT DECISIONS. 37
FREDERICK W. BROWN v. CHARLES T. RUSSELL, Jr., AND OTHERS.
[166 Mass. 14.]
Sufiolk, Nov. 12, 1895—April 25, 1896. Present: Field, C.J.,
Allen, Holmes, Knowlton, Morton, Lathrop and Barker, JJ.
Veterans’ Preference Act — Civil Service Commissioners — Constitu-
tional Law.
The provisions of St. 1895, c. 501, §§ 2 and 6, so far as they purport absolutely
to give to veterans particular and exclusive privileges distinct from those
of the community in obtaining public Ofiice, are unconstitutional; but
whether a distinction can be made between public offices and employments
by the public which are not offices, qucere.
Petition, filed July 22, 1895, for a writ of mandamus, to Charles
Theodore Russell, Jr., Arthur Lord and Edward P. Wilbur, Civil
Service Commissioners of Massachusetts, praying that they be re-
quired to restore the petitioner to the highest place upon the list of
candidates eligible for certification and appointment to a position on
the detective force of the district police of the Commonwealth, a
preference for certification and appointment having been given to one
Edward D. Bean, conformably to the provisions of St. 1895, c. 501.
Hearing before Allen, J ., who, at the request of the petitioner, and
with the consent of the respondents, reserved the case for the deter-
mination of the full court. The facts appear in the opinion.
The case was argued at the bar in November, 1895, and afterwards
was submitted on the briefs to all the judges.
J. B. WARNER and J. J. FEELY, for the petitioner; H. M. KNOWL-
TON, Attorney-General (G. C. TRAVIS, First Assistant Attorney-Gen-
eral, with him), for the respondents.
FIELD, C.J. In determining the principal question in this case, it
is necessary to consider the statutes relating to the civil service, and
particularly St. 1895, c. 501. The previous statutes on the subject
are St. 1884, c. 320; St. 1887, c. 437; St. 1889, c. 352; St. 1889,c.
473; St. 1891, c. 140; St. 1893, c. 95; St. 1893, c. 253; St. 1894, cc.
267, 519 ; and St. 1895, c. 376. The justices of this court heretofore
have had occasion to consider some of these statutes in an opinion
given to the House of Representatives on Feb. 24, 1885, and in one
given to the Governor and Council on Sept. 22, 1887. (See 138 Mass.
601 ; 145 Mass. 587.)
38 MASSACHUSETTS CIVIL SERVICE.
By St. 1884, c. 320, § 2, the Civil Service Commissioners to be ap-
pointed under the act were authorized to prepare rules not inconsistent
with existing laws or with the provisions of the act, and adapted to
carry out the purposes thereof, for the selection of persons to fill cer-
tain offices in the government of the Commonwealth, and of the several
cities thereof, which are required to be filled by appointment, and for
the selection of persons to be employed as laborers or otherwise in the
service of the Commonwealth and of the several cities thereof, and
the rules were made subject to the approval of the Governor and
Council ; and by § 14 the rules were to be given a general or limited
application. The commissioners have prepared rules with reference
to what is called the official service of the Commonwealth, and of the
several cities thereof, and with reference to the labor service, and
these rules have been approved by the Governor and Council. Under
the classification of the services made by the rules there are included
in the first division, schedule A, clerks and other persons rendering
services as copyists, etc., and, in schedule B, persons employed in the
prison, police and fire departments and some other officers. The
second division includes the labor service. Section 15 of St. 1884,
as amended by St. 1893, c. 95, describes the offices which, under ex-
isting laws, cannot be made subject to the civil service rules. It is
obvious that the civil service statutes and rules relate only to certain
subordinate ofiices and employments which have been created by the
Legislature. None of them is an ofiice or employment of which the
duties, tenure or qualifications are prescribed by the Constitution.
In the present case the pbtitidfief is fiota veteran; and, after exam-
ination, was placed at the head of the list of candidates eligible for
certification and appointment to a position on the detective force of
the district police of the Commonwealth, and he remained at the head
of the list until July, 1895, when the commissioners placed one
Edward D. Bean at the head of the list and reduced the petitioner to
the second place. Bean had made application as a veteran, under
St. 1895, c. 501, § 2, and, having been found to be a veteran, was,
without examination, placed first upon the list; and, so far as ap-
pears, he is the only veteran on the list. The district police are
appointed by the Governor of the Commonwealth, and are subject to
removal by the Governor. Pub. Sts., c. 103, § 1. If the Governor
makes requisition upon the commissioners for a candidate for ap-
pointment to the ofiice of a detective upon this police force, it is made
the duty of the commissioners, by St. 1895, to certify the name of
Edward D. Bean for appointment, and of the Governor to appoint
SUPREME JUDICIAL COURT DECISIONS. 39
him, if he appoints anybody. The Governor perhaps may refuse to
appoint anybody, if he is of opinion that Bean is not qualified to per-
form the duties of a detective on this force; or he may wait until
more veterans than one are on the list of persons eligible to such an
appointment, and make his selection from them ; or he may appoint
Bean, and remove him if he finds him incompetent. But then, if
Bean is continued on the list and is the only veteran on it, or if his
application is considered as exhausted by one certification and he
makes a new application, the statutes, literally construed, make it the
duty of the commissioners to put his name again at the head of the
list for appointment, and on requisition by the Governor again to cer-
tify him for appointment, and so on, toties quoties, so long as he re-
mains on the list.
It is to be noticed that the class of veterans as defined by the
statutes is not a class which anybody can become qualified to enter
by any services which he may perform or by any attainments which
he may acquire, but it is a class fixed and determined by services
which were rendered a long time before any of the statutes were
passed. It is also to be noticed that the fact of having been a veteran
within the meaning of the statute in and of itself has little tendency
to show that the applicant is specially qualified to perform the duties
of many of the offices to which the civil service statutes and rules
relate. The principal purpose of exempting veterans from submit-
ting to an examination must be that veterans sometimes may be
appointed to an office or employment who would be found on ex-
amination not qualified to perform the duties of the office or employ-
ment which they seek. One, and perhaps the chief, purpose of the ex-
emption must be to reward veterans for their services in the war of the
rebellion. The reward is not in the nature of a pension or payment
of money, but of an office or employment, the salary or pay of which
the veteran is to receive. The provisions of the statutes exempting
veterans are general in their nature, and relate to all the offices or
employments that have been or may be included within the civil ser-
vice rules. From the earliest times most nations have conferred
honors and offices upon those persons who have rendered distinguished
service to the State, particularly in war. These honors and offices have
been conferred upon persons voluntarily selected, and pensions and
rewards sometimes have been given to whole classes of persons, of
which the statutes of the Commonwealth relating to the “ Aid to
soldiers and sailors and to their families,” and the statutes of the
United States relating to pensions, are well-known examples; but
4O MASSACHUSETTS CIVIL SERVICE.
the statute of 1895 under consideration affords the first instance, so
far as we know, in this Commonwealth, where the appointing power
has been compelled to appoint persons of a certain class to office in
preference to all other persons, whether they are or are not thought
to be qualified for the ofiice by the appointing power, or by some pub-
lic officer or some impartial and disinterested board of ofificers or per-
sons invested by law with the power and responsibility of determining
the qualifications of the persons to be appointed.
The Legislature, in establishing offices not provided for by the
Constitution, has often required that the persons or some of the per-
sons to be appointed shall possess certain qualifications, or that some
of them shall be women and some men ; but in all cases, so far as we
are aware, the qualifications required bear such a relation to the duties
imposed that they tend to secure that kind and degree of knowledge,
experience and impartiality which are requisite for the satisfactory
performance of their duties, and it is open to any person to acquire
the qualifications required. When women are to be appointed, there
is a satisfactory reason in the nature of the otfice or employment why
this should be done. In every such case some discretion usually has
been left to the appointing power in the selection of the particular
persons to be appointed. The peculiarity of the civil service statutes
and rules, if St. 1895, c. 501, §§ 2 and 6, be enforced, is that very
little is left to the discretion of the appointing power in the selection
of persons if there are veterans who wish to be appointed. The
Civil Service Commissioners, in making up the list and in certifying
thepersons to beappeistedrmustproceed iniqertaipway designated
by the statutes and the rules, and the appointments must beInZcIe, if
at all, from the persons so certified. Before the passage of St. 1895,
c. 501, it was within the discretion of the appointing power whether
veterans who had been put upon any list without an examination,
pursuant to St. 1887, c. 437, should or should not be certified for
appointment by the commissioners; and it was also in the discretion
of the appointing power, whether, if such veterans were certified,
they should be appointed. But if veterans make application under
St. 1895, c. 501, § 2, they are to be preferred “ for certification and
appointment in preference to all other applicants not veterans, except
women ; ” and, as separate lists are made up for the different ofi‘ices
and employments, appointments from each list must be made from
veterans, if any man is appointed, and there are veterans on the list.
It ought perhaps to be considered whether it is intended that
veterans who make application for employment in the public service
SUPREME JUDICIAL COURT DECISIONS. 41
under St. 1895, c. 501, §§ 2 and 6, shall not only file a petition in
accordance with § 6, but shall also conform in their application to
the requirements of the second section of rule XII. of the civil ser-
vice rules, pursuant to § 2 of the statute. We are of the opinion that
it was the intention of the statute that the application under this stat-
ute of aveteran who does not wish to submit to an examination should
be made in accordance with the requirements of both the second sec-
tion of rule XII. of the civil service rules, and § 6 of the statute.
(See opinion in 145 Mass. 587.)
It may perhaps be doubted whether it is the intention of the statute
of 1895 that, if a veteran makes application pursuant to § 2, his
application shall be taken to be conclusively true, or that the com-
missioners may inquire into the truth of the statements contained in
the application. St. 1891, c. 140, gives the commissioners ample
power to make investigation in all cases requiring it, and the only
question is, what is the intention of St. 1895. The commissioners
must of necessity inquire and determine whether an applicant is a
veteran according to the meaning of this statute, otherwise he has no
right to make the application under § 2. We have, however, found
it unnecessary in the present case to determine whether the commis-
sioners may also inquire into the truth of the statements made in the
application, to the effect that he has not suffered loss of limb or other
physical impairment which incapacitates him from performing the
duties of the position which he seeks; that he is a citizen of the
United States; that he does not habitually use intoxicating beverages
to excess, and is not a vendor of intoxicating liquor; and has not
been convicted within one year of any offence against the laws of the
Commonwealth. Whether they can make these inquiries or not, we
are unable to see in the statutes any indication that the Legislature
intended that the commissioners should examine a veteran who makes
application under St. 1895, c. 501, §§ 2 and 6, with reference to his
moral character, or his mental acquirements and capacity to perform
the duties of the position which he seeks. If the commissioners
were to do this, and were to certify to the appointing officer only such
veterans as they found to be of good moral character and mentally as
well as physically qualified to perform the duties of the position which
they seek, there would be little difierence under this statute between
the condition of veterans who desire an appointment without having
passed any examination, and that of those who submit themselves to
an examination. We think the intention of the statute of 1895 is
that the sworn statement of the applicant that he is qualified to per-
42 MASSACHUSETTS CIVIL SERVICE.
form the duties of the position which he seeks, accompanied by a
certificate from three citizens of good repute in the community that
they know said applicant to be fully competent to perform such duties,
is to be taken by the commissioners for the purpose of certification to
the appointing power, and by the appointing power as conclusive
upon the mental and moral qualifications of the applicant. The cer-
tificate of three citizens is not required to be under oath, and it may
be made by any three persons of good repute whom the applicant
may select; it is not made under any sense of official responsibility,
and the persons making it are not required to be impartial or dis-
interested. They may be the friends or relations or servants of the
applicant. St. 1895, c. 501, § 2, provides “ that the age limit now
established by the civil service rules, with regard to appointments in
the police and prison service and fire departments, may be applied to ”
appointments under this section; but this seems to be the only clear
provision that the commissioners may exclude from certain offices
and employments veterans who make the requisite application, ac-
companied by the requisite statement and certificate, and the exclu-
sion can be made only on account of age, in accordance with the age
limit established by the civil service rules when St. 1895, c. 501, took
effect.
It is the contention of the petitioner that the privileges given to
veterans by St. 1895, c. 501, §§ 2 and 6, are in violation of the prin-
ciples which underlie our system of government implied in the Con-
stitution of the Commonwealth, and also are in violation of certain
express provisions of the Constitution. The express provisions relied
on are found in articles 6 and 7 of the Declaration of Rights, and
reference is also made to article 9. Article 9 is as follows : “ All elec-
tions ought to be free ; and all the inhabitants of this Commonwealth,
having such qualifications as they shall establish by their frame of
government, have an equal right to elect officers, and to be elected
for public employments.” It is not contended that this article in
terms is applicable to the present case. It relates to elections and
to inhabitants who have such qualifications as are established by
the frame of government. The civil service statutes do not relate to
elections or to any ofiices the qualifications for which are established
by the Constitution, but the article, so far as it extends, does declare
the principle that all persons having the requisite qualifications have
an equal right to elect and to be elected to public office.
Article 7 is as follows : “ Government is instituted for the common
good; for the protection, safety, prosperity, and happiness of the
SUPREME JUDICIAL COURT DECISIONS. 43
people; and not for the profit, honor, or private interest of any one
man, family, or class of men ; therefore, the people alone have an in-
contestable, unalienable and indefeasible right to institute govern-
ment; and to reform, alter or totally change the same, when their
protection, safety, prosperity and happiness require it.” This arti-
cle is declarative of the ends of the institution of government. It may
be said to be fairly within the intent of this article that public offices,
which are the instrumentalities of government, ought not to be created
or filled for the profit, honor or private interest of any one man,
family, or class of men, but only for the protection, safety, prosperity
and happiness of the people, and for the common good.
Article 6 is as follows : “ N 0 man, nor corporation, or association
of men, have any other title to obtain advantages, or particular and
exclusive privileges, distinct from those of the community, than what
arises from the consideration of services rendered to the public ; and
this title being in nature neither hereditary, nor transmissible to chil-
dren, or descendants, or relations by blood, the idea of a man born
a magistrate, lawgiver or judge, is absurd and unnatural.” From
the conclusion of this article it is manifest that it is mainly directed
against hereditary offices and privileges, but it is contended that this
is not its whole purpose. It is said that the mention of corporations
and associations of men shows that hereditary privileges were not
solely intended, because corporations and associations of men have
no heirs, although they may be perpetual. We think it obvious that,
whatever may be the advantages or particular and exclusive privileges
mentioned, they may include advantages and privileges for life or a
definite period of time, as Well as hereditary advantages and privi-
leges. We think, for example, that a peerage for life, with the
privileges which attach to a peerage by English law, cannot be con-
ferred in this Commonwealth upon any person, any more than can an
hereditary peerage.
It has been argued, on the one hand, that the words “than what
arises from the consideration of services rendered to the public”
mean or include services which have been rendered to the public in
the past; and that if a man, corporation or association of men has
rendered services to the public in the past, it is consistent with this
article that he may obtain advantages, or particular and exclusive
privileges, in consideration of those services. On the other hand, it
is argued that it is only in consideration of services to be rendered
to the public therefor, that a man, corporation or association of men
may obtain advantages or particular and exclusive privileges. This
44 MASSACHUSETTS CIVIL SERVICE.
provision is said to have been taken from the Declaration of Rights
in the Constitution of Virginia of 1776, section IV., where it reads as
follows: “ That no man, or set of men, are entitled to exclusive or
separate emoluments or privileges from the community, but in con-
sideration of public services, which, not being descendible, neither
ought the offices of magistrate, legislator, or judge to be hereditary.”
In our opinion, the meaning of these words in this article, so far as
they are applicable to public officers, is that only in consideration of
services to be rendered to the public therefor can a man, corporation
or association of men obtain advantages or particular and exclusive
privileges distinct from those of the community. A person may
obtain the advantages or privileges attached to a public office in con-
sideration of his performing the duties of the office. It is for the
purpose of rendering service to the public in a public office that ad-
vantages and privileges distinct from those of the community may
be obtained. The meaning of this article was somewhat considered
in Hewitt 0. Charier, 16 Pick. 353, and it was held that St. 1818,
c. 113, was not in violation of the article. It was there held that
the leading purpose of that statute was to guard the public against
ignorance, negligence and carelessness in the practice of physio and
surgery, and that the exclusive privileges granted to such persons as
shall have been licensed by the officers of the Massachusetts Medical
Society, or have been graduated doctors of medicine from Harvard
University were only incidental to the leading purpose of the statute.
In that case, as in others where a license is required before any one
can engage in certain professions or pursuits, a service is rendered to
the public by the exercise on the part of those licensed of the skill,
knowledge and experience required to obtain a license, and by the
exclusion of ignorant and incapable persons from the profession or
pursuit. But it may be questioned whether this article of the Decla-
ration of Rights was intended to apply to private pursuits and em-
ployments, and whether it is not to be confined to political and civil
rights and privileges.
The original St. 1884, c. 320, concerning the civil service, required
that the rules should provide “for giving preference in appoint-
ments to office and promotions in office (other qualifications being
equal) to applicants who served in the army or navy of the United
States in time of war and have been honorably discharged there—
from.” § 14, cl. 6. It may be said that, other qualifications being
equal, there are reasons to believe that a veteran soldier or sailor
often will make a better civil officer than a person who never has
been subjected to the discipline of service in war; and it is distinctly
SUPREME JUDICIAL COURT DECISIONS. 45
a public purpose to promote patriotism, and to make conspicuous and
honorable any exhibition of courage, constancy and devotion to the
welfare of the State, shown in the public service. These things, we
assume, the Legislature may take into account in providing for
appointments to office where the qualifications are not prescribed by
the Constitution. St. 1887, c. 437, provides that veterans may be
preferred for appointment to office or employment in the service of the
Commonwealth or the cities thereof, without having passed an exami-
nation under the civil service rules. This statute only gives a dis-
cretion to the appointing power, which it may or may not exercise,
according to the needs of the public service. (See also St. 1889, c.
473.) St. 1895, c. 501, § 1, amending St. 1884, c. 320, § 14, cl. 6,
makes compulsory the certification and appointment of veterans who
have been examined and found qualified for the positions they seek,
in preference to all other persons, but they must submit to the same
examination as other persons. The constitutionality of this section
of the statute is not now before us.
The purpose of St. 1895, c. 501, §§ 2 and 6, is to make the ap-
pointment of veterans compulsory, if they desire to be appointed,
whether the appointing power or the commissioners think they are or
are not qualified to perform the duties of the office or employment
which they seek. Section 6 requires a sworn statement of the appli-
cant that he is qualified to perform the duties of the position he seeks,
but it is notorious that persons the least qualified to perform the
duties of an office often are the readiest to believe that they are quali-
fied to perform them, and this provision cannot be seriously taken as
a reasonable and adequate method of ascertaining the qualifications
of applicants for office or employment. Probably it was because the
Legislature felt that this requirement was not adequate, that the cer-
tificate of three citizens of good repute was also required. But the
obvious defect in this requirement is that the applicant may select the
three citizens, and they are not required to have any knowledge of
the qualifications required, or to be disinterested or impartial, or to
act under any sense of public responsibility. A man cannot properly
be a judge in his own case, or make his servants and agents the
judges. Such a certificate cannot be regarded as a reasonable,
impartial and adequate method of determining the qualifications of
applicants for appointment to office or employment, if it be necessary
under the Constitution that all persons appointed to office or employ-
ment should be adjudged by somebody to be qualified to perform the
duties of the office or employment.
The principal question of law in this case, broadly stated, is there-
46 MASSACHUSETTS CIVIL SERVICE.
fore as follows: Can the Legislature constitutionally provide that
certain public offices and employments which it has created shall be
filled by veterans in preferment to all other persons, whether the vet-
erans are or are not found or thought to be actually qualified to per-
form the duties of the offices and employments by some impartial and
competent ofificer or board charged with some public duty in making
the appointments? If such legislation is not constitutional as regards
public offices, the question incidentally may .arise whether a distinc-
tion can be made between public offices and employments by the pub-
lic which are not offices.
Public offices are created for the purpose of effecting the ends for
which government has been instituted, which are the common good,
and not the profit, honor or private interest of any one man, family
or class of men. In our form of government it is fundamental that
public offices are a public trust, and that the persons to be appointed
should be selected solely with a view to the public welfare. In offices
which are created by the Legislature, where the method of appoint-
ment is not prescribed by the Constitution, the Legislature, if no
limitation is put upon its power by the Constitution, can take upon
itself the responsibility of selecting the persons to be appointed, or
can confer the power of appointment upon public omcers or boards
or upon the inhabitants of cities, towns or districts; but we think
that it is inconsistent with the nature of our government, and par-
ticularly with articles 6 and 7 of our Declaration of Rights, that the
appointing power should be compelled by legislation to appoint to
public offices persons of a certain class in preference to all others,
without the exercise on its part of any discretion, and without the
favorable judgment of some legally constituted officer or board desig-
nated by law to inquire and determine whether the persons to be
appointed are actually qualified to perform the duties which pertain
to the offices.
There are 'many employments by the Commonwealth, or by the
cities and towns of the Commonwealth, which do not constitute the
employee a public officer. The work of the Commonwealth, and of
the cities and towns, must be done by agents or servants, and much
of it is of the nature of an employment. It is sometimes difficult to
make the distinction between a public office and an employment, yet
the title of “ public officer” is one well known to the law, and it often
is necessary to determine what constitutes a public office. Every copy-
ing clerk or janitor of a public building is not necessarily a public
officer. With reference to such and similar employments, it may be
SUPREME JUDICIAL COURT DECISIONS. 47
suggested that, if the Legislature can give pensions to veteran soldiers
and sailors, it may grant them on condition that the pensioners shall
render such service to the Commonwealth, or to its cities and towns,
as they can ; that they may be employed and paid wages or a salary,
partly in consideration of the services they render, and partly in
recognition of and as a reward for the services which they have
rendered to the Commonwealth in the past. We have not found it
necessary, however, in the present case, to consider the authority of
the Legislature to grant pensions or pecuniary rewards for past ser-
vices to the State, whether the pensions and rewards be absolute
or conditional upon the rendering of some service, because, in our
opinion, the persons appointed to the detective department of the dis-
trict police force of the Commonwealth, under Pub. Sts., c. 103, and
the acts in amendment thereof, are public officers, and not merely
employees of the Commonwealth. They are appointed by the Gov-
ernor for the term of three years, subject to removal by the Gov-
ernor, and they “ have and exercise throughout the Commonwealth
all the powers of constables (except the service of civil process),
police officers and watchmen, and may be transferred from one dis-
trict to another; and the Governor may at any time command their
services in suppressing riots and in preserving the peace.” Pub.
Sts., c. 103, § 2. They give bonds to the Treasurer of the Com-
monwealth, and receive a stated salary from the treasury of the
Commonwealth. They have and exercise some of the powers of
government. We are of opinion that §§ 2 and 6 of St. 1895, c. 501,
so far as they purport absolutely to give to veterans particular and
exclusive privileges distinct from those of the community in obtain-
ing public office, cannot be upheld as enactments within the consti-
tutional power of the General Court.
The result is, that the commissioners were not authorized by St.
1895, c. 501, §§ 2 and 6, without an examination, to place the name
of Edward D. Bean at the head of the list to be certified for appoint-
ment upon the detective force of the district police of the Common-
wealth, in preference to all other applicants not veterans or women ;
and they should he commanded to strike his name from the list.
Mandamus to issue accordingly.
48 MASSACHUSETTS CIVIL SERVICE.
OPINIoN or THE JUsrIcEs 'ro THE GOVERNOR AND CoUNcIL.
[166 Mass. 589.]
By FIELD, C.J., HoLMEs, KNOWLTON and MORTON, JJ. Section 2 of St.
1896, c. 517, which authorizes veterans to apply for examination for any
position in the public service classified under the civil service statutes and
rules, and provides that if such veterans pass the examination they shall
be preferred in appointment to all male persons not veterans, is constitu-
tional. By ALLEN, LATHROP and BARKER, JJ. The section is unconsti-
tutional.
Section 3 of St. 1896, c. 517, which gives a discretion to the appointing power
to appoint veterans to any position in the public service classified under
the civil service statutes and rules, without an examination, if in its opin-
ion the needs of the public service require this to be done, is constitu-
tional.
By FIELD, C.J., KNOWLTON and MORTON, JJ. So far as section 6 of St.
1896, c. 517, means that the Civil Service Commissioners shall establish
rules to secure the employment of veterans in the labor service of the
Commonwealth and its cities and towns in preference to all other persons,
except women, if the veterans are found competent to perform the labor,
it is constitutional. HoLMEs, J ., concurred, but was not prepared to say
that the section would be unconstitutional upon a different construction
By ALLEN, LATHRoP and BARKER, J J . The section is unconstitutional.
The following order was passed by the Council on June 16, 1896,
and transmitted on June 20, by His Honor the Acting Governor, to
the justices of the Supreme Judicial Court, who, on Sept. 25, 1896,
returned the answer which is subjoined : ——
CoUNcIL CHAMBER, SrA'rE HOUSE,
Bos'roN, June 16, 1896
Whereas, Certain amendments to the civil service rules have been
prepared by the Civil Service Commissioners, pursuant to section 2
of chapter 320 of the Acts of the Legislature for 1884, -—to carry out
certain provisions of chapter 517 of the Acts of the Legislature for
1896, —and said amendments have been submitted to the Governor
and Council for approval;
And Whereas, Such amendments involve the question of the con-
stitutionality and validity of the provisions of sections 2, 3 and 6 of
said chapter 517 of the Acts of 1896, and the preference in appoint-
ment and employment in the public service thereby provided for per-
sons who served in the army or navy of the United States in the time
of the war of the rebellion, and were honorably discharged therefrom,
and "also citizens of Massachusetts who have distinguished themselves
SUPREME JUDICIAL COURT DECISIONS. 49
by gallant and heroic conduct while serving in the army or navy of
the United States, and who have received a medal of honor from the
President of the United States;
And Whereas, Doubt has been raised as to the constitutionality of
said sections of said act and of said proposed amendments to the civil
service rules thereunder, and the Governor and Council before approv-
ing said amendments desire the opinions of the justices of the Supreme
Judicial Court thereon ;
And Whereas, Said questions of law are important, and the occa-
sion is solemn, — ‘
It is therefore 'voled .' That the opinions of the justices of the
Supreme Judicial Court be required, under article II. of chapter III. of
the Constitution, upon the following important questions of law :—
Ft'rst. -- Is it within the constitutional power of the General Court
to provide, as in section 2 of said chapter of the Acts of the Legis-
lature for 1896, that veterans and medal holders, as defined in said
act, applying for examination for any position in the public service
classified under the civil service rules, and passing the required exami-
nation, shall be preferred in appointment to all persons not such vet-
erans, although the latter may have a higher marking or standing upon
the eligible list for such position?
Second. -—-Is it within the constitutional power of the General
Court to provide, as in section 3 of said chapter 517 of the Acts of
the Legislature for 1896, that appointing officers may by requisition
call for the names of any or all veterans or medal holders, as defined
in said act, applying for appointment to or employment in any position
in the public service classified as aforesaid, without examination, and
to appoint or employ any of such unexamined veterans or medal
holders in the office or position sought, in preference to persons not
such veterans or medal holders, who have passed the required exami-
nation for such office or position, and whose names are upon the eli-
gible list therefor?
Third. -- Is it within the constitutional power of the General Court
to provide, as in section 6 of said chapter 517 of the Acts of the
Legislature for 1896, that in the labor service of the Commonwealth
and the cities and towns thereof, the Civil Service Commissioners
shall establish rules to secure the employment of veterans and medal
holders, as defined in said act, in the class for which they make appli-
cation, in preference to all other persons except women?
Fourth. --Are sections 2, 3 and 6 of said chapter 517 of the Acts
of the Legislature for 1896 constitutional?
50 MASSACHUSETTS CIVIL SERVICE.
Fifth. —Would the amendments to the civil service rules, prepared
by the Civil Service Commissioners under said chapter 517 of the Acts
of the Legislature for 1896, and herewith submitted to the justices
(numbered respectively, for this purpose, first, second and third), be
constitutional and valid, if approved by the Governor and Council?
Proposed amendments to civil service rules, prepared by the Civil
Service Commissioners and submitted to the justices of the Supreme
Judicial Court, under question fifth : --
First—Section 1 of civil service rule XII. is hereby rescinded,
and in place thereof the following is substituted : ——
SECTION 1. The word “ veteran” in these rules shall mean a person who
served in the army or navy of the United States in the time of the war of
the rebellion, and was honorably discharged therefrom; and also a citizen
of Massachusetts who has distinguished himself by gallant and heroic con-
duct while serving in the army or navy of the United States, and who has
received a medal of honor from the President of the United States.
Second. — Civil service rule XXVII. is hereby rescinded, and the
following rule is substituted therefor : --
RULE XXVI I. — 1. Whenever any ofiicer or board having the power of
appointment to any office or employment under these rules shall make
requisition not expressly calling for women, the commissioners shall cer-
tify the names of all veterans who have passed the examination for the
position sought, in the order of the respective standing of such veterans
upon the list; and in case there is no such veteran upon the list, then the
commissioners shall certify the names of the three most eligible persons
not veterans upon the list. In case such oflicer or board shall in the requi-
sition request the certification of women, then the commissioners shall cer-
tify the names of the three most eligible women upon the list.
2. The appointment or employment shall be made from the list of
names so certified, subject to the provisions of the following section.
3. Whenever any officer or board having the power of appointment to
any ofiice or employment shall in his requisition so request, the names of
any or all veterans registered under rule XII. shall be certified, and any
of the veterans so certified may be appointed or employed in the office or
position sought.
Third. -- Section 2 of civil service rule XLV. is hereby rescinded,
and in place thereof the following sections are substituted : —
1. When the services of laborers are required, the officer or board having
the appointment or selection shall notify the commissioners, stating the
number of men wanted, the precise nature of the labor in which they are
SUPREME JUDICIAL COURT DECISIONS. 51
to be employed, and the time and place of employment; and the commis-
sioners shall thereupon certify the names with the residences of the veterans
registered for the required labor, and the employment shall be made from
the list so certified; provided, however, if any age limit is specified in the
requisition, such limit may be recognized by the commissioners, if the
appointing oflicer shall certify in his requisition, and the commissioners
upon investigation are satisfied that the work to be performed is so arduous
as to require the services of young and vigorous men.
2. In case there is not a sulficent number of veterans so registered
and within the age limit for the work required (where such limit is made
and recognized as above provided) the commissioners shall certify twice
the number of men called for, over and above the number of veterans, if
any, certified, making an impartial selection, and giving preference, first,
to those who have had experience in the Work required, and, second, to
those having families dependent upon them for support.
To His Honor the Acting Governor of the Commonwealth and to the Honor-
able Council.
We, the undersigned, justices of the Supreme Judicial Court, in
compliance with the order of the Council of June 16 last, and the
request of the Acting Governor of June 20 last, copies of which are
annexed, respectfully submit the following opinion : —
The principal questions are, whether sections 2, 3 and 6 of chapter
517 of the Statutes of 1896 are within the constitutional power of the
General Court. Sections 2 and 3 of the statute are substantially re-
enactments of pre-existing statutes which were expressly repealed by
section 8. (See Sts. 1887, c. 437; 1889, c. 473; 1895, c. 501, § 1.)
The authority given to the General Court by the Constitution
to pass statutes on the subject has been often cited, and is found in
c. 1, § 1, Article 4 of the Constitution. So far as civil officers
are concerned, it is full power and authority “to name and settle
annually, or provide by fixed laws, for the naming and settling all
civil officers within the said Commonwealth, the election and consti-
tution of whom are not hereafter in this form of government other-
wise provided for; and to set forth the several duties, powers and
limits of the several civil and military ofi'lcers of this Commonwealth, '
and the forms of such oaths or affirmations as shall be respectively
administered unto them, for the execution of their several offices and
places, so as the same be not repugnant or contrary to this constitu-
tution.” So far as public employments are concerned which do not
constitute the employee a public officer, the authority is “ to make,
ordain and establish, all manner of wholesome and reasonable orders,
laws, statutes and ordinances, directions and instructions, either with
52 MASSACH USETTS CIVIL SERVICE.
penalties or without, so as the same be not repugnant or contrary to
this Constitution, as they shall judge to be for the good and welfare
of this Commonwealth, and for the government and ordering thereof,
and of the subjects of the same, and for the necessary support and
defence of the government thereof.”
Section 2 of the statute of 1896 authorizes veterans to apply for
examination under the civil service statutes and rules, and provides
that if such veterans pass the examination they shall be preferred in
appointment to all male persons not veterans. The effect of the sec-
tion is that the veterans must first be found qualified, by an exami-
nation, in accordance with the civil service statutes and rules, to
perform the duties of the office or employment which they seek ; and,
if they are found so qualified, they are to be preferred in appoint-
ment to all other persons except women. The General Court may
have been of opinion that a person who had served in the army or
navy of the United States in the time of the war of the rebellion and
had been honorably discharged therefrom, or who was a citizen of
Massachusetts and had distinguished himself by valiant and heroic
conduct in the army or navy of the United States and had received a
medal of honor from the President of the United States, is a person
who has shown such qualities of character that it is for the interests of
the Commonwealth to appoint him to certain ofifices or employments
in preference to other male persons, if he is found otherwise qualified
to perform the duties. The General Court may have so thought, on
the ground either that such a person would be likely to possess
courage, constancy, habits of obedience and fidelity, which are
valuable qualifications for any public ofiice or employment, or that
the recognition of the services of veterans in the way provided for by
the statute would encourage that love of country and devotion to the
welfare of the State which it concerns the Commonwealth to foster.
If such was the opinion of thevGeneral Court, we cannot say that it
was beyond its constitutional power to enact this section. Of the
wisdom of such legislation we are not made the judges. The section
does not purport to give an absolute preference to veterans without
regard to their qualifications, and the constitutionality of similar
legislation was not considered in the recent decision of the court of
which we are the justices. (See Brown v. Russell, 166 Mass. 14.)
Section 3 of the statute of 1896 gives a discretion to the appoint-
ing power to appoint veterans to certain offices and employments
without an examination, if in its opinion the needs of the public ser-
vice require this to be done. Before the enactment of the civil ser-
SUPREME JUDICIAL COURT DECISIONS. 53
vice statutes, the qualifications of the persons to be appointed or
employed in the ofiices and employments covered by these statutes
usually were left to be ascertained by the appointing power in such
manner as it saw fit. The effect of this section is to permit veterans
to be appointed to oflice or employment in the old way. if it seems
best to the power having the right of appointment. It may be that
the General Court was of opinion that there were certain offices and
employments in which it was important that the appointee should
have the qualifications usually found in veteran soldiers and sailors;
and that the good of the public service would be promoted by giving
this discretion to the appointing power. Undoubtedly this, like the
preceding section, gives a certain advantage to veterans over other
persons, in being appointed to of‘fice or employment; but the section
implies that the veteran to be appointed shall be found qualified by
the appointing power in its own way, and it was not intended to pro-
vide for the appointment of veterans who are not qualified to perform
the duties pertaining to the office or employment which they seek.
The section does not necessarily exclude the appointment of other
persons, if the appointing power is of opinion that the appointment
should be made under the civil service statutes and rules. We can-
not say that this section is an enactment beyond the constitutional
power of the General Court.
The constitutionality of section 6 of the statute of 1896 depends, we
think, upon the meaning to be given to it. If the section means that
the Civil Service Commissioners shall establish rules to secure the
employment of veterans in the labor service of the Commonwealth,
and of the cities and towns, in preference to all other persons except
women, which rules shall secure the employment of veterans, whether
they are or are not found qualified to perform the labor which pertains
to the service, and thus shall compel the Commonwealth and its cities
and towns to pay wages to veterans for labor which they do not and
cannot perform, we should have great difficulty in sustaining it as a
constitutional enactment. This section does not relate to public
ofiices, and, without suggesting that any distinction can be made
between public offices and public employments in the matter we are
considering, the section was passed under the authority given to the
General Court to make all manner of wholesome and reasonable laws.
We doubt whether a statute which purports to compel the Common-
wealth and its cities and towns to employ in the labor service persons
who are not able to perform the labor, and to pay them wages as
laborers, could be held to be either wholesome or reasonable. But,
54 MASSACHUSETTS CIVIL SERVICE.
if the section means that the Civil Service Commissioners shall estab-
lish rules to secure the employment of veterans in the labor service
of the Commonwealth, and its cities and towns, in preference to all
other persons except women, if the veterans are found competent to
perform the labor, we think the enactment is within the constitutional
power of the General Court. The civil service rules provide generally
that applicants for the labor service who produce satisfactory evidence
of their capacity for labor, and their habits as to industry and sobriety,
shall be registered in the order of their application, at such convenient
times and place or places as shall be designated by the commissioners.
(Rule XLV., § 1.) The special regulations in relation to the em-
ployment of laborers and mechanics which have been adopted by the
commissioners provide, not only that the applicant must produce a
certificate, signed by two reputable citizens of his city, of his capacity
for labor and of his habits of industry and sobriety, but also that
before entering the name of an applicant on the register such further
inquiry may be made in regard to his character and capacity as the
commissioners may deem practicable or expedient; and that in case
an applicant is found to be unfit or in any way disqualified to perform
the service which he seeks, his name shall not be entered on the
register, and the reason therefor shall be indorsed on the applicant’s
statement. (Regulations 4, 7, 9.) These rules and regulations were
adopted before the passage of the statute of 1896, and were contained
in the reports of the Civil Service Commissioners to the General
Court. It may be presumed that the General Court knew of the ex-
istence of these rules and regulations when they passed the statute of
1896 ; and the authority given by the sixth section to establish rules
to secure the employment of veterans in the labor service in prefer-
ence to all other persons except women, considered with reference to
the existing statutes and rules, makes it reasonable to infer that the
intention of the General Court was that the rules so established might
provide for determining in some manner that the veterans who make
application to be employed in the labor service should have the
capacity to perform the labor involved in the service. The section
should be so construed as to be within the constitutional power of the
General Court, if it reasonably can be. Without unequivocal lan-
guage to that effect, we should hesitate to impute to the General
Court an intention to give to persons entirely incapacitated for labor
an absolute right to be employed and paid in the labor service of the
Commonwealth, and of its cities and towns, as if they could and did
perform the labor. Such a provision would seem inconsistent with a
SUPREME JUDICIAL COURT DECISIONS. 55
purpose to promote efficiency in the public service, and to legislate in
the interests of all the people. The requirement that the com-
missioners shall establish rules to secure the employment of veterans
“in preference ” to others, implies that the employment of veterans
is to be regulated in the interests of the public service as well as to
secure to them a preference, and that they are not to be employed
in the labor service if they have not the ability to labor. It could
hardly have been the intention of the General Court that women
should be employed in the labor service who could not perform the
labor, or that the proviso of St. 1896, c. 449, should give an absolute
preference to veterans in employment, even although the veterans
were incapable of performing the duties of the employment.
The sixth section of St. 1896, c. 517, does not purport to define
what the preference shall be which the rules established by the com-
missioners are to secure, but the preference intended is probably not
greater than the preference conferred by the second and third sections
of the statute.
Unless, then, the appointing ofificers call for the names of veterans
for labor service whose qualifications have not been ascertained by the
commissioners in any manner, we think that the commissioners may
provide by rules for determining the qualifications of the veterans.
Construing the sixth section in this way, we are of opinion that it is
an enactment within the constitutional power of the General Court.
Mr. Justice Holmes concurs in this construction of the section, but is
not prepared to say that it would be unconstitutional upon a different
construction.
The remaining questions relate to the civil service rules which the
commissioners have prepared and submitted to the Acting Governor
and Council for approval. We perceive no constitutional objection
to the approval of these rules, although we think that the rule relating
to the appointment of veterans in the labor service under the sixth
section of the statute of 1896 might have made explicit provisions for
determining the qualifications of the veterans who seek service under
this section, unless the appointing officers call for veterans who have
not submitted to anything in the nature of an examination.
WALBRIDGE A. FIELD.
OLIVER WENDELL HOLMES.
MARCUS P. KNOWLTON.
JAMES M. MoR'roN.
SEPT. 25, 1896.
56 MASSACHUSETTS CIVIL SERVICE.
To He's Honor the Acting Governor of the Commonwealth and to the Honor-
able Council.
In the opinion of the undersigned, there is no difference in the con-
stitutional principles which govern the selection of persons for public
ofifice and for public employment and the reasons given in Brown '0.
Russell, 166 Mass. 14, for holding St. 1895, c. 501, §§ 2, 6, uncon-
stitutional as to public office apply to public employment as well.
In both cases, the important matter is to get the best possible ser-
vice, and the selections should be made with reference to the qualifi-
cations or fitness for the performance of the duties which are to be-
performed. And, since this is so, it is not within the constitutional
power of the Legislature to fix as a decisive test anything which does
not bear such a relation to the duties to be performed as to show
special fitness for the performance of those duties.
The fact of being a veteran, as defined in St. 1896, c. 517, does not
bear such a relation to the duties of a present office or employment in
the civil service of the Commonwealth that it can be made a decisive
test in the selection of persons for such offices or employments. A
veteran may or may not have special fitness for such positions. Cer-
tainly to have served honorably in the army or navy is not the only
way in which one can acquire such fitness. However useful the train-
ing may be which many of the veterans received in the army or navy,
it cannot be laid down as a universal proposition that every veteran
who can pass the examination to which all applicants are subjected is
better qualified for such office or employment than any other person
now is or can become. The appointing power cannot be required to
pass by cases of conspicuous fitness and to accept service of a lower
character, simply because a veteran applies for the position. In re-
quiring this to be done, the statute sets apart a class of persons who,
in consequence of what they did in the war, and irrespectively of present
qualifications, are to be preferred, so that nobody else, however well
fitted or however meritorious by reason of valuable or distinguished
services in other occupations calling for fidelity and fortitude, can be
“ considered as eligible for appointment, or can become eligible in the
future, in competition with them. No matter what may have been the
services, training and discipline, or what may be the natural ability or
acquired skill of others, the power of selecting them for public ofiice
or employment is cutoff. This involves a compulsory disregard of
actual fitness and qualifications, to the detriment of the public service.
Nor can the fact that a veteran has passed the prescribed exam-
SUPREME JUDICIAL COURT DECISIONS. 57
ination be made a decisive test in favor of his appointment. This
may merely show that he has the minimum qualifications required,
but cannot be made to entitle him to a compulsory preference over
those who are better qualified.
It is, therefore, not within the constitutional power of the Legis-
lature to enact that veterans shall be preferred for public ofi'ice or
employment to others who may have higher standing or superior quali-
fications; and the first and third questions are answered in the
negative.
The second question is answered in the afiirmative, for the reasons
given in the opinion signed by a majority of the justices.
The fourth and fifth questions are answered in the negative, to the
extent hereinbefore explained. CHARLES ALLEN.
JOHN LATHROP.
JAMES M. BARKER.
58 MASSACHUSETTS CIVIL SERVICE.
OPINIONS OF THE ATTORNEYS—GENERAL.

Veteran—Absolute Right to Appointment.
Under the civil service act, § 14, c. 320, Acts of 1884, and the civil service
rules thereunder, a veteran, whose standing upon the eligible list is equal
with others not veterans, must be accepted and appointed.
This right is not affected by the provision of a city charter previously
enacted, giving the mayor and aldermen “full and exclusive power to
appoint.”
FEB. 19, 1886.
To the Attorney-General.
A case has just arisen in the appointment of a police officer by the
mayor and aldermen of the city of Northampton on which the Civil
Service Commissioners desire your opinion as to the duty of institut-
ing proceedings in the Supreme Court, in the name, upon the relation,
of a veteran of the late war, who claims to have been deprived of the
just preference accorded by the civil service law and the rules to the
class to which he belongs.
The facts, briefly stated, are these : ——
The mayor of Northampton made a requisition in due form upon
the Board of Civil Service Examiners in said city for the names of
eligible persons to fill a vacancy in the regular police force. The
Board certified, in accordance with the rules, the names of the three
persons who had the highest general average standing on their eligible
list for that service, namely : —
Luther A. Clark, whose average standing was 872%.; George D.
Briscoll, whose average standing was 864.15; and L. M. Rushford,
whose average standing was 81%. Clark was indicated as a soldier
of the late war, entitled to all the preference growing out of that
fact. The mayor nominated him for appointment by the board of
aldermen, and in so doing stated that he desired to appoint Briscoll,
whose name stood second on the certification, but that the law com-
pelled him to name Clark first, on account of his military service.
The board of aldermen voted not to confirm the nomination of Clark.
The mayor then nominated Briscoll, and he was duly confirmed and
has entered upon the discharge of his duties.
OPINIONS OF THE ATTORNEYS-GENERAL. 59
Clark now requests to be informed whether he has any remedy in
law, and if so, how it is to be enforced.
If upon an examination of the law and the facts you are of the
opinion that by the appointment of a man of lower standing, as ascer-
tained under the civil service rules, the mayor and aldermen of North-
hampton have violated the law, the commissioners would advise that
application be made for a writ of certiorari, by which the error in the
proceedings of the mayor and aldermen may be corrected.
The case in Northampton is not the only one in which, quite
recently, the appointing power has apparently failed to recognize
the just preference given by the law and the rules to the veterans of
the late war; but it is the simplest case for adjudication, and is
therefore selected as a proper one to test the issues involved.
For the provisions of the law and the rules bearing upon the ques-
tions you are respectfully referred to the accompanying document,
pages 48 and 61. The decisions of the State Civil Service Commis-
sion and the Supreme Court of New York, in the matter of the pref-
erence to veterans of the late war under the laws of that State, are
also enclosed for your information.
Very respectfully, JAMES M. BUGBEE,
Chairman.
Manon 6, 1886.
Hon. JAMES M Bosses,
Chairman, Civil Service Commissioners, Boston.
DEAR SIR: —I have the honor to submit the following reply to
your question respecting the veteran’s preference clause in the civil
service law (chapter 320, Acts of 1884) : -—
Section 14 of said act provides that rules shall be prepared for,
among other things (cl. 6), “ giving preference to applicants to office
and promotions in office (other qualifications being equal) to appli-
cants who served in the army or navy of the United States in time of
war and have been honorably discharged therefrom.”
In obedience to this direction, your Board prepared the following
rule :—
Persons who have served in the army or navy of the United States in
time of war, and been honorably discharged therefrom, shall be preferred
for appointment in the civil service over other persons of equal qualifica-
tions as ascertained under these rules; and persons thus preferred shall
not be disqualified from holding a position in the civil service on account of
any physical disability, provided such disability does not render him incom-
petent to perform the duties.
60 MASSACHUSETTS CIVIL SERVICE.
The question submitted is, whether this preference in favor of the
veteran is absolute, or one to be exercised within the sound discre-
tion of the appointing ofiicer.
After carefully considering the subject, I am of the opinion that
where, under your rules, you have certified three or more persons as
eligible to a given position, one of whom is a veteran, whose stand-
ing on the list is equal with the others, such veteran must be accepted
and appointed by the appointing officer. In other words, where the
standing of the veteran on the eligible list is equal to the others cer-
tified, he is absolutely entitled to the appointment.
To allow the appointing officer to decide as to the quality of the
“ other qualifications ” would be to practically deprive the veteran of
a preference which I believe was intended by the Legislature.
As to your suggestion that in the Northampton case the clause in
section 2 of the civil service act relating to rules “ not inconsistent
with existing laws” might be applicable, I have to say that, while
the charter of said city (chapter 250, Acts of 1883) provides that
“the mayor and aldermen shall have full and exclusive power to
appoint” police and other ofiicers, the civil service act (chapter 320,
Acts of 1884), a year later, provides a different way of appointing
such officers. That is, the Legislature has provided a general law
relating to the appointment of certain officers in the Commonwealth,
which, by a well-settled rule of law, is a repeal of all prior existing
laws on the same subject; hence the general act of 1884 takes the
place of the special act of 1883.
Rules prepared under the last enacted law, as provided by section
2 thereof, are “ not inconsistent with existing laws,” because by said
last enacted law provisions that were or would have been in conflict
were in effect repealed. -
The mayor and aldermen still have the absolute right of appoint-
ment, but it is the appointment of certified applicants as provided by
the act of 1884, a part of which act is the veteran’s preference clause,
which, as has been stated, is absolute and entitled to precedence, and
a further limitation of the appointing oflicer’s powers.
Respectfully, your obedient servant, EDGAR J. SHERMAN,
Attorney-General.
OPINIONS OF THE ATTORNEYS-GENERAL. 61
Oflicers included in Civil Service Law — Employee of Board of
Overseers of the Poor— “Election” as distinguished from “ Ap-
pointment.”
A clerk whose duties are properly described by the word “ employment,” and
who has no part in the government of a city and no powers or duties
of an official character, comes within the classification provided by civil
service rules.
The method of selection of an employee within the civil service classification,
whether by form of election or appointment, is immaterial.
Nov. 4, 1892.
Hon. A. E. PILLSBURY, Attorney-General.
DEAR SIR : -- The Civil Service Commissioners request your opinion
upon the following facts : —-
The board of overseers of the poor of the city of Lawrence, as con-
stituted by the city charter (Acts of 1853, chapter 70, section 11),
consists of one member elected by the voters of each of the six wards
of the city, two aldermen elected by the city council,‘ and the mayor,
ew-oflicio, making a board of nine members. '
The board has a chief clerk, and in addition it has employed a
female clerk. Recently she resigned, and the board, without requi-
sition upon the commissioners, and outside of the civil service rules,
proceeded to “elect” as her successor Kate F. Gorman, claiming
that, under section 15 of the civil service act (chapter 320 of the
Acts of 1884), the office was “ elective,” and so excluded from the
classified service ; that is, that this clerk “ was elected, and not
appointed by the board.” We understand that the position calls
merely for clerical service and assistance to the chief clerk, for which
the occupant receives about a dollar and a half a day.
The commissioners request your opinion whether, upon these facts,
the employment is legal. The question is important, not so much as
concerns this particular position, but in view of the claims of appoint-
ing boards throughout the State, that, instead of appointing, they can
“ elect ” their employees.
I enclose copy of the correspondence in this case.
Yours very truly, CHAS. THEO. RussELL, J r.,
Chairman, Civil Service Commissioners.
62 MASSACHUSETTS CIVIL SERVICE.
Nov. 21, 1892.
To the Civil Service Commissioners.
In compliance with your request, I submit my opinion upon the
legality of the recent election of a female clerk by the board of over-
seers of the poor of the city of Lawrence without requisition upon the
Civil Service Board or certification of the person elected. It appears
by your statement of the facts that “the position calls merely for
clerical service and assistance to the chief clerk, for which the occu-
pant receives about a dollar and a half a day ; ” and that the board
of Overseers justifies its action upon the ground that the occupant was
elected to the place, and so is an “elective ofiicer,” in the sense of
section 15 of the civil service act; conceding, I presume, that she is
within the civil service rules, unless the fact that she was elected
instead of being appointed takes her out of their operation.
The case appears to me to turn upon a different point. There is a
recognized distinction between an office and an employment under the
government; and the civil service act recognizes and affirms this dis-
tinction, by providing in one clause for “ the selection of persons to
fill oflices in the government of the Commonwealth and of the several
cities thereof,” and in another for “ the selection of persons to be
employed as laborers or otherwise in the service of the Commonwealth
and the several cities thereof.” The same distinction has often been
recognized by the courts ; and it has been judicially declared that an
office, as distinguished from an employment, involves “ a delegation
of a portion of the sovereign power to, and possession of it by, the
person filling the office.”
The question whether this clerk is an officer or an employee of the
city of Lawrence is easily answered, and the answer disposes of the
case. She does not appear to have any part in the government of
the city, or any powers or duties of an official character. On the
contrary, her duties are plainly such as are properly described by the
word “ employment,” as used in the statute.
Under these circumstances, the method of selection is immaterial,
although other cases might turn upon it. The appointing board, by
going through the form of an election, cannot make her an officer
who obviously is only an employee. Nobody would contend that
laborers on the streets or sewers, for example, can be made “ elective
oflicers ” of the city by calling them so or by electing them by ballot.
‘The decisive question is, whether the real character and functions of
the place in question make it an office or an employment, in the sense
of the law and in view of the distinction thereby established. It may
OPINIONS OF THE ATTORNEYS—GENERAL. 63
be difiicult in some cases to determine whether it is on the one side
of the line or the other, but in the present case I see no room for
doubt.
Upon your statement, the clerk is not an “ elective officer,” in the
sense of the law, and for this reason I am of opinion that the appoint-
ment, as made, is illegal.
Very respectfully, your obedient servant, A. E. PILLSBURY,
Attorney- G encral.
64 MASSACHUSETTS CIVIL SERVICE.
Payment by the Piece instead of by Time.
Under the civil service act, the commissioners can, by rule, provide in the
inclusion of persons, otherwise within the classification, whether paid by
the piece or the work done, or by time.
Until such amendment in the classification, a person paid by the piece should
not be treated as within the present (1893) rules.
Nov. 10, 1893.
Hon. ALBERT E. PILLsBURY, Attorney-General.
DEAR SIR : -—The Civil Service Commissioners request your opin-
ion upon the following facts : —
James E. Gray has for some months been employed in the office of
the water income department of Boston by the water registrar, who is
the head of the department. The position, so far as the duties are
concerned, would bring it within the classified civil service, as that of
a clerk, within class 2 of schedule A. His labor is to make out and
mail bills for water rates. The registrar claims that Gray is employed,
or his services contracted for, by agreement to pay him, instead of a
per diem or other salary or wages, the sum of one cent for each bill
made out and mailed by him. He makes out about three hundred
every day, so that his compensation is about three dollars a day.
The water registrar claims that the personal service rendered by him
under an agreement to pay by the piece is not an employment, within
the meaning of the civil service act and rules, but a contract engage-
ment outside of the rules.
The commissioners request your opinion upon these facts, whether
the position occupied by said Gray is within the classified service, or
whether the agreement for his services and the manner of compensa-
tion take the case out of the civil service act and rules.
Very truly yours, CHAs. THEO. RUssELL, Jr.,
Chairman.
DEC. 22, 1893.
To the Civil Service Commissioners.
GENTLEMEN : -—I have your request for my opinion whether a clerk
in the water income department of Boston, whose duty is to make out
and mail bills for water rates for a compensation of one cent each,
agreed on with the head of the department, by which he earns about
three dollars per day, is within the classified service, or whether the
agreement for his services and the manner of compensation take the
case out of the civil service act and the rules.
OPINIONS OF THE ATTORNEYS-GENERAL. 65
As to your suggestion of the claim that “ the personal service ren-
dered by the clerk under an agreement to pay by the piece is not an
employment, within the meaning of the civil service act and rules, but
a contract engagement outside of the rules,” I do not think such a dis-
tinction between an “employment” and a “ contract engagement”
can be maintained, at least in the present case. I have already said
or intimated to the commissioners that in my opinion a case which
the law intends to include is not to be taken out of it, nor taken from
the class in which it belongs and put into another, merely by the form
under which the person may be selected or engaged for the service,
especially if such form is adopted for the purpose of evading the law.
The position of this clerk is a position of employment, in the sense of
the statute, and the precise form of the contract of employment is
immaterial. The case turns on the question whether a person work-
ing by the piece, whose compensation depends on the amount of work
done, as distinguished from one who receives a fixed salary or com-
pensation measured by time, is within the operation of the system.
I see no reason to doubt that the statute is broad enough to cover
such cases, or that under it the rules may be extended, with the excep-
tions expressed in section 15, to all positions required to be filled by
appointment, and all positions of employment, for labor or other ser-
vice. The express exception of certain cases indicates the purpose
of the Legislature to include all which are not so excepted.
But the statute also provides that the rules may be made from time
to time, and may be given a general or limited application; and the
question here is, whether the present rules extend far enough to
include this case ; and this depends on the question whether the clerk
is included within the description of schedule A, class 1 or class 2,
as a “ person whose annual compensation is at a rate less than $800,”
or “ a person whose annual compensation is at the rate of $800 and
over.”
This description might be construed to include a person regularly
working by the piece, at least if his annual compensation could be so
nearly determined beforehand as to make it certain whether he belongs
in class 1 or class 2 ; and in a case of palpable evasion or attempt to
evade the rules, perhaps it ought to be so construed. But I am
informed that the rules have not heretofore been generally understood
as extending to persons working by the piece or quantity; and, as it
is within the power of the commissioners to so extend them, if neces-
sary or expedient, by an amendment, making it clear not only that
such cases are included but so defining them that there will be no difiEi-
66 MASSACHUSETTS CIVIL SERVICE.
culty in applying the rules to any particular case and no room for eva-
sion, I think it is better to bring them within the system in this way,
if at all, rather than by a construction of the present rules which
might be regarded as doubtful. '
I conclude, therefore, that, unless the commissioners are satisfied
that the form of employment in this case is in fact an attempt to evade
the law, it should not be treated as within the present rules.
Very respectfully, your obedient servant,
A. E. PILLsBURY,
Attorney- General.
OPINIONS OF THE ATTORNEYS—GENERAL. 67
Extent and Construction of the Veteran Preference.
The veteran preference act (chapter 501, Acts of 1895) is merely amendatory
of existing civil service legislation, and is to be construed in view of such
legislation, and of the rules established under it.
The preference act of 1895 does not repeal or affect civil service rule X., pre-
scribing certain requirements as to age, height and weight.
It does not repeal or affect sections 3 and 4 of chapter 320 of the Acts of
1884, excluding from appointment persons habitually using intoxicating
beverages to excess, venders of intoxicating liquors and persons within a
year convicted of an offence.
It does not repeal or affect the civil service rules requiring citizenship and
residence.
It does not repeal or affect the civil service rules allowing reappointment.
It does not repeal or affect the civil service rules regarding promotion.
Under the act, a provisional appointment of a person not a veteran cannot be
allowed, if any veteran has applied for appointment without examination.
Under the act, veterans applying for labor service must be certified without
regard to age, in the absence of any civil service rule prescribing an age
limit.
. JUNE 21, 1895.
Hon. H. M. KNOWLTON, Attorney-General.
MY DEAR SIR : ——The Civil Service Commissioners respectfully
request your official opinion upon the following questions of the con-
struction of the recent act of the Legislature (chapter 501 of the Acts
of 1895), entitled “ An Act relative to the preference of veterans for
employment in the public service,” taken in connection with the civil
service act (chapter 320 of the Acts of 1884) and the existing civil
service rules thereunder.
First. —Under civil service rule X. there are certain requirements
of age, height and weight in certain classes of the public service. For
instance, in the police force of Boston every applicant must be less
than thirty-three years of age (see rule X., pages 55 and 56 of the
report of the Civil Service Commission, October, 1894). The first
section of the recent act requires the commissioners “to cause the
names of veterans, who having been examined and found qualified for
appointment to the position for which they have applied,” to be
placed upon the eligible list and to be certified in preference to others ;
and provides that veterans so certified “ shall be appointed in pref-
erence to those who are not veterans,” excepting women. Under this
statute provision, are the present requirements of civil service rule X.,
fixing an age limit in the designated classes, applicable to veterans
applying for examination under the section, or has any veteran, with-
68 MASSACHUSETTS CIVIL SERVICE.
out regard to any absolute requirements as to age, weight or height,
a right to apply for and demand examination, and certification if he
passes the examination? In other words, do the requirements of civil
service rule X. apply to veterans seeking examination and the pref-
erence under section 1 of the act?
Second—Under section 2 of the recent act, veterans who apply
for employment under civil service rule XII. (that is, without ex—
amination) shall be preferred for certification and appointment in
preference to all other applicants not veterans, except women. The
section then contains a proviso, “ that the age limit now established
by the civil service rules with regard to appointments in the police
and prison service and fire departments may be applied to such ap-
pointments.” This “age limit now established ” is contained in rule
X., above referred to. You will notice that in that rule (clause C) it
is provided that “ applicants for appointment to the police force of
any city other than Boston mustbe not less than twenty-two nor over
forty years of age, and applicants for appointment to the district
police force must he not less than twenty-two nor over fifty-five years
of age, at the time of filing the application: “provided, however, that
this limitation as to age shall not apply to persons who served in the
army or navy of the United States in time of war, and have been hon-
orably discharged therefrom.” With the recognition in this section
of the act of the “ age limit now established by the civil service rules,”
and with this exemption in the rule of an age requirement of veterans
applying for positions on the police force of cities outside of Boston
and on the district police force, can the age limit provided in this
rule be applied to veterans applying under section 2 for appointment,
without examination, to such positions?
Third. --The civil service act (chapter 320 of the Acts of 1884)
provides, in sections 3 and 4, that no person habitually using intoxi-
cating beverages to excess, and no vender of intoxicating liquor, and
no person within one year after conviction of any offence against the
laws of this Commonwealth, shall be appointed to or retained in any
office. In view of the new act, and especially of the provisions of
section 6, defining what shall be a sufficient “ application ” by a vet-
eran, can the above-cited provisions of the civil service act be applied
to or enforced against a veteran filing an application which conforms
to the requirements of this sixth section of the act?
Fourth. — Civil service rule VII. requires, as an absolute qualifica-
tion, residence of a year in the Commonwealth, and where city service
is sought, of six months in such city, before filing the application.
OPINIONS OF THE ATTORNEYS-GENERAL. 69
Can this rule be applied to veterans seeking examination, or appoint-
ment without examination, under this new act, or does the act abro-
gate the rule as to them? To put the question in the concrete : Can
a citizen of New York, if a veteran, demand examination, or certifi-
cation, with the attending preference, for the clerical service of
Massachusetts? Can a resident of a town, if a veteran, demand
appointment, under the preference, as a police officer of New Bedford?
Fifth. -—In several of the classified oflices there is a fixed term of
office. District police ofiicers hold for three years. In six of our
cities, Lynn, Salem, Newburyport, Fitchburg, Taunton and North-
ampton, the police officers hold for the term of one year. By recent
statute the term of office of the police officers of Haverhill is fixed
for four years. In recognition of this fact, civil service rule XL.
(page 65) provides: “ No examination shall be required upon a reap-
pointment of any person to the same office.” This rule has had
its intended effect in allowing the governor to reappoint district
police ofiiccrs, and the mayors of these cities to reappoint police
oflicers without examination or civil service application on the part
of the incumbents. The question now arises, and is addressed by
us to you: Can such reappointment, if of a person not a veteran, be
made, if there is under this act any veteran who has applied for the
position and complied with the requirements of the act?
Sixth. —- Civil service rule XLIII. provides for promotion by com-
petitive or non-competitive examination, and provides that, so far
as practicable, such promotion shall be made by successive grades.
This rule in practicable operation affects mainly the police and fire
forces, especially of Boston, where the forces are large and chance
of promotion correspondingly great. Can this rule be enforced
against a veteran now on the force seeking the higher grade by pro-
motion under the preference secured by this act, with or without
examination? To put this question in a more concrete form: Can a
patrolman on the police force of Boston, if a veteran soldier, require
that he shall be certified and appointed to the position of sergeant on
the force, in preference to a patrolman who is not a veteran, with or
without examination?
Seventh—Under civil service rule XXXVI. it is provided that
where there is no suitable eligible list a provisional appointment may
be made by competitive or non-competitive examination. This is
frequently the case when special qualifications are required, or when,
as in the smaller cities, no eligible list exists. Can this rule be
enforced in any case where a veteran, filing the certificates provided
70 MASSACHUSETTS CIVIL SERVICE.
under section 6 of the act, applies for appointment to the position,
without examination? Must such veteran be certified and appointed?
Eighth—Under civil service rule XLV. provision is made for
the registration of laborers in Boston and other cities. Neither
an age limit nor an examination is required by the rules. In many
cases, however, where the labor requires strong and active men, the
employing department has been accustomed to call for an age limit,
as a special qualification in the requisition for laborers, and the com-
missioners, believing the requirement to be bona fide, have recog-
nized it. Have the commissioners, under this new statute, any right
to recognize an age limit in a requisition for laborers in Boston, if
veterans are on the labor rolls seeking certification and employment?
Must veterans, applying for city labor, be certified and employed in
preference to all other persons, if they have filed the statement and
certificates required by section 6 of the act?
I fear I have put our questions somewhat awkwardly, and possibly
you may find difficulty in understanding them. I wish to put them
fairly, with no desire to suggest my own opinion in regard to any Of
them. If, however, a personal interview would assist you in learn-
ing better what we wish to submit to your official consideration, I
will call upon you at your convenience. Our only desire is to be
informed of the legal construction Of the law, and we will then. enforce
it to the utmost of our ability. I send you herewith copies of the
last report containing the civil service rules to which I have made
reference above, and a copy of the recent veteran preference act.
Respectfully submitted, under authority of the Civil Service Com-
missioners, CHAs. THEO. RUssELL, Jr.,
Chairman.
JULY 5, 1895.
CHARLES THEODORE RUSSELL, Jr.,
Chairman, Civil Service Commissioners.
DEAR SIR : —I have the honor to acknowledge the receipt of your
letter of June 21, asking my opinion on the construction of Statutes
1895, chapter 501, entitled “An act relative to the preference of
veterans for employment in the public service,” and to reply thereto
as follows : —-
The statute in question is obviously amendatory of existing legis-
lation. It follows that it Operates to change or modify previous laws
upon the same subject only so far as it does so expressly or by
implication. The statute further recognizes the rules of the com-
OPINIONS OF THE ATTORNEYS-GENERAL. 71
mission, which have been approved by the Governor and Council.
The statute, therefore, is to be construed in view of the existing
legislation and of the rules established under it.
Keeping in view the statutes already enacted, and the rules estab-
lished by the authority of the same, I proceed to answer the questions
contained in your letter specifically.
“ First.-— Under civil service rule X. there are certain require-
ments of age, height and weight in certain classes of the public ser-
vice. For instance, in the police force of Boston every applicant
must be less than thirty-three years of age (see rule X., pages 55
and 56 of the report of the Civil Service Commission, October, 1894).
The first section of the recent act requires the commissioners ‘to
cause the names of veterans, who having been examined and found
qualified for appointment to the position for which they have applied,’
to be placed upon the eligible list, and to be certified in preference to
others, and provides that veterans so certified ‘ shall be appointed in
preference to those who are not veterans,’ excepting women. Under
this statute provision, are the present requirements of civil service
rule X., fixing an age limit in the designated classes, applicable to
veterans applying for examination under the section, or has any
veteran, without regard to any absolute requirements as to age,
weight or height, a right to apply for and demand examination, and
certification if he passes the examination? In other words, do the
requirements of civil service rule X. apply to veterans seeking exam-
ination and the preference under section 1 of the act?”
The section referred to in this question is an amendment of Statutes
1884, chapter 320, section 14, clause 6. The clause as it originally
stood gave a preference in the appointment to office and promotion
in office (other qualifications being equal) to veterans; but it had
reference only to appointments that were made after examination.
The statutes of this year strike out the words “ other qualifications
being equal,” and make it the duty of Civil Service Commission to
cause the names of veterans who have been examined and found
qualified for the position to which they have applied to be put upon
the eligible list in the order of their respective standing, above the
names of all other persons.
This section is not to be construed as inconsistent with the provi-
sions of civil service rule X., which was in force at the time of its
renactment and is still in force, which rule prescribes certain require-
ments as to age, height and weight. These requirements are to 'be
taken to be still in force, and applicable to the case of persons com-
72 MASSACHUSETTS CIVIL SERVICE.
ing within the provisions of section 1. The purpose and effect of the
amendment was merely to repeal the provisions in the sixth clause,
that other qualifications should be equal, and to prefer all persons
included within the provisions of said section to all other persons
otherwise qualified for the office.
“ Second. —Under section 2 of the recent act, veterans who apply
for employment under civil service rule XII. (that is, without ex-
amination) shall be preferred for certification and appointment in
preference to all other applicants not veterans, except women. The
section then contains a proviso, ‘ that the age limit now established
by the civil service rules with regard to appointments in the police
and prison service and fire departments may be applied to such
appointments.’ This ‘ age limit now established’ is contained in
rule X., above referred to. You will notice that in that rule (clause
C) it is provided that ‘ applicants for appointment to the police force
of any city other than Boston must be not less than twenty-two nor
over forty years of age, and applicants for appointment to the dis-
trict police force must be not less than twenty-two nor over fiftyfive
years of age, at the time of filing the application: provided, however,
that this limitation as to age shall not apply to persons who served
in the army or navy of the United States in time of war, and have
been honorably discharged therefrom.’ With the recognition in this
section of the act of the ‘ age limit now established by the civil ser-
vice rules,’ and with this exemption in the rule of an age require-
ment of veterans applying for positions on the police force of cities
outside of Boston and on the district police force, can the age limit
provided in this rule be applied to veterans applying under section 2
for appointment, Without examination, to such positions?”
Section 2 referred to in the foregoing question relates to veterans
who desire appointment to office or employment in the service classi-
fied under the civil service rules without having passed examination.
The age limit referred to is to be found in the various divisions and
clauses of rule X. of the civil service rules. Clause C in said rule
provides that“ in class 3'applicants for appointment to the police
force of any city other than Boston must be not less than twenty-two
nor over forty years of age, and applicants for appointment to the
district police force must be not less than twenty-two nor over fifty-
five years of age, at the time of filing the application : provided, how-
ever, that this limitation as to age shall not apply to persons who
served in the army or navy of the United States in time of war, and
have been honorably discharged therefrom. In all cases in this class,
OPINIONS OF THE ATTORNEYS—GENERAL. 73
except the inspection force of the district police, applicants must be
not less than five feet seven inches in height, and weigh not less than
one hundred and thirty-five pounds.”
Construing section 2 of the act in connection with the proviso in
the clause above quoted, I am of opinion that, in order to give proper
effect to the language of said section 2, it must be held that the age
limit established by the civil service rules is to be applied to all appli-
cants for appointment under section 2, except in the case of appli-
cants for appointment to the police force of any city other than
Boston and applicants for appointment to the district police force,
these being exempt by the terms of clause C, above quoted.
“ Third. — The civil service act (chapter 320 of the Acts of 1884)
provides, in sections 3 and 4, that no person habitually using intoxi-
eating beverages to excess, and no vender of intoxicating liquor, and
no person within one year after conviction of an offence against the
laws of this Commonwealth, shall be appointed to or retained in any
office. In view of the new act, and especially of the provisions of
section 6, defining what shall be a sufficient ‘ application’ by avet-
eran, can the above-cited provisions of the civil service act be applied
to or enforced against a veteran filing an application which conforms
to the requirements of this sixth section of the act? ”
I am of the opinion that Statutes 1884, chapter 320, sections 3 and
4, as amended by Statutes 1888, chapter 334, are applicable to the
case of all veterans who file an application in conformity with the
requirements of Statutes 1895, section 6. Upon the principle already
stated, inasmuch as the act under consideration is amendatory, all
existing legislation, including the civil service rules, are in force, ex-
cepting so far as they are modified or repealed by the statute of this
year. There is nothing in section 6 of the latter act, or in any part
of the act, which repeals or modifies in any way Statutes 1884, chap-
ter 320, sections 3 and 4.
“ Fourth. —— Civil service rule VII. requires, as an absolute qualifi-
cation, residence of a year in the Commonwealth, and where city ser-
vice is sought, of six months in such city, before filing the application.
Can this rule be applied to veterans seeking examination, or appoint-
ment without examination, under this new act, or does the act abro-
~ gate the rule as to them?”
This question differs from question 3 in that there were certain pro-
hibitions contained in Statutes 1884, to which said question referred;
while, on the other hand, the present question relates to rule VII.
of the civil service rules, which prescribes certain qualifications for
74 MASSACHUSETTS CIVIL SERVICE.
appointment which are not found in any existing statute. But I can-
not doubt that the Board clearly had the right to adopt rule VII. under
the provisions of Statutes 1884, chapter 320, section 2, and that the
Governor and Council could properly approve it. The question is,
whether persons seeking appointment under the act of 1895, either
with examination under the provisions of section 1, or without exami-
nation under the provisions of section 2, are subject to the provisions
of this rule. There is no reference to any rule of the civil service
rules in section 1. In section 2 there is a direct reference to the civil
service rules, with the proviso which has already been recited. The
exact language of section 2 is as follows: “ Veterans who have made
application for employment in the public service, in accordance with
the second section of rule XII. of the civil service rules, shall be pre-
ferred for certification and appointment in preference to all other
applicants not veterans, except women: provided, that the age limit
now established by the civil service rules with regard to appointment
in the police and prison service and fire departments may be applied
to such appointments.”
The second section of rule XII. of the civil service rules provides
as follows: “ Any veteran desiring, under Statutes 1887, chapter
437, appointment to office or employment in the service classified
under the civil service rules without having passed any examination
provided therein, shall file an application for said appointment, stat-
ing on oath, first, his full name, residence and post-office address;
second, the office he seeks; third, that he desires appointment with-
out having passed any examination provided for by the civil service
act or the rules thereunder; fourth, his services in the army or navy
of the United States in time of the war of the rebellion, and discharge
therefrom ; fifth, that he has not suffered loss of limb, or other physi-
cal impairment, which incapacitates ; sixth, his citizenship; seventh,
that he does not habitually use intoxicating beverages to excess, and
is not a vender of intoxicating liquor; eighth, that he has not within
one year been convicted of any offence against the laws of this Com-
monwealth. Such application must be supported by certificates that
the applicant has all the qualifications required by law of veterans.
Such application, if for an office or employment in the service of the
Commonwealth or of the city of Boston, shall be filed in the ofiice
of the commissioners in Boston; if for an office or employment of any
city other than Boston, it shall be filed with the local board of exami-
ners in such city.” ‘ .
This rule makes it incumbent upon the veterans desiring employ-
OPINIONS OF THE ATTORNEYS—GENERAL. 75
ment without passing examination to conform to the second section
of rule XII. of the civil service rules; and when they have done so
they shall be preferred for certification and appointment above all
other applicants not veterans, except women, with the limitations
contained in the proviso. This being so, it follows, upon the princi-
ples already stated, that applicants are subject to rule VII. The same
is true of applicants under section 1.
“ Fifth. —In several of the classified offices there is a fixed term
of office. District police oficers hold for three years. In six of our
cities, Lynn, Salem, Newburyport, Fitchburg, Taunton and North-
ampton, the police officers hold for the term of one year. By recent
statute the term of office of the police officers of Haverhill is fixed for
four years. In recognition of this fact, civil service rule XL. (page
65) provides: ‘ No examination shall be required upon a reappoint-
ment of any person to the same office.’ This rule has had its intended
effect in allowing the governor to reappoint district police officers,
and the mayors of these cities to reappoint police officers, without
examination or civil service application on the part of the incumbent.
The question now arises and is addressed by us to you: Can such
reappointment, if of a person not a veteran, be made, if there is under
this'act any veteran who has applied for the position and complied
with the requirements of the act?”
Rule XL. provides that “ no examination shall be required upon
the reappointment of any person to the same office.” This rule, it is
said, was intended to allow the governor to reappoint district police
officers, and the mayors of the various cities to reappoint police offi-
cers, without examination, at the expiration of their various terms of
office. There is no express provision in Statutes 1884, or the amend-
ment thereof, establishing any such rule. It has been made by the
commissioners under the authority given them by section 2 of said
act; and I am of the opinion that it stands upon the same ground as
the case considered under the fourth question ; and that, upon a reap-
pointment to the ofifice named, if a veteran has applied for the place
and has complied with the requirements of the act of 1895, the appoint-
ing power may, nevertheless, reappoint the person whose term has
expired.
“Sixth—Civil service rule XLIII. provides for promotion by
competitive or non-competitive examination, and provides that, so far
as practicable, such promotion shall be made by successive grades.
This rule in practicable operation affects mainly the police and fire
forces, especially of Boston, where the forces are large and chances
76 MASSACHUSETTS CIVIL SERVICE.
of promotion correspondingly great. Can this rule be enforced
against a veteran now on the force seeking the higher grade by pro-
motion under the preference secured by this act, with or without
examination? ”
Civil service rule XLIII. provides for promotion by competitive
and non-competitive examination, and provides that, so far as prac-
ticable, such promotion shall be made by successive grades. The
question is, whether this rule is to be enforced against a veteran now
on the force seeking a higher grade, by this act, with or without
examination. I am of opinion that it must be so considered.
“ Seventh. ——Under civil service rule XXXVI. it is provided that
where there is no suitable eligible list a provisional appointment may
be made by competitive or non-competitive examination. This is
frequently the case when special qualifications are required, or when,
as in the smaller cities, no eligible list exists. Can this rule be
enforced in any case where a veteran, filing the certificates provided
under section 6 of the act, applies for appointment to the position,
without examination? Must such veteran be certified and appointed ? ”
Under civil service rule XXXVI. it is provided that where there is
no suitable eligible list a provisional appointment may be made
by competitive or non-competitive examination. The question is,
whether this rule can be enforced in any case where a veteran, filing
the certificates provided under section 6 of the act, applies for appoint-
ment without examination. I am of the opinion that it cannot, for
the reason that, upon the application of a veteran in accordance with
the provisions of the act of 1895, it can no longer be said that there
is no suitable eligible list, and so the rule to that extent fails.
“ Eighth—Under civil service rule XLV. provision is made for
the registration of laborers in Boston and other cities. Neither an
age limit nor an examination is required by the rules. In many cases,
however, where the labor requires strong and active men, the employ-
ing department has been accustomed to call for an age limit, as a
special qualification in the requisition for laborers, and the commis-
sioners, believing the requirement to be bona fide, have recognized
it. Have the commissioners, under this new statute, any right to
recognize an age limit in a requisition for laborers in Boston, if vet-
erans are on the labor rolls seeking certification and employment?
Must veterans, applying for city labor, be certified and employed in
preference to all other persons, if they have filed the statement and
certificates required by section 6 of the act?”
OPINIONS OF THE ATTORNEYS-GENERAL. 77
I am of the opinion, for the reasons already stated in reply to the
previous ‘questions, that veterans applying for such labor, in the
absence of any rule of the Civil Service Commission prescribing an
age limit, must be certified and employed in preference to all other
persons, if they file the statements and certificates required by sec-
tion 6 of the act.
I havezthe honor to be, very respectfully, your obedient servant,
HOSEA M. KNOWLTON,
Atlorney- General.
78 MASSACHUSETTS CIVIL SERVICE.
Veteran Preference — Age —- Moral Character.
Under the veteran preference act (chapter 501, Acts of 1895) and the civil
service rules, the commissioners can determine the physical ability and
moral character of the veteran applicant.
00122, 1895.
Hon. H. M. KNOWLTON, Attorney-General, Boston, Mass.
DEAR SIR: — The Civil Service Commissioners request your official
opinion upon the following facts and questions :—
A veteran soldier in a city outside of Boston, admitted to be entitled
to any preference provided by chapter 501 of the Acts of 1895, is
reported to the commissioners as receiving a pension from the United
States for total disability. He has applied under section 2 of the
said act of 1895 for appointment without examination on the police
force of such city, and has filed certificates “ from three citizens of
good repute in the community, stating that they know said applicant
to be fully competent to perform the duties of the position sought,”
as provided by section 6 of the act defining the term “ application,”
used in section 2 of the act.
You will notice that the language of section 2 is: “ Veterans who
have made application for employment in the public service in accord-
ance with the second section of rule twelve of the civil service rules,”
etc.
Rule XII. referred to is as follows : -—
“ 1. The word ‘veteran’ in this rule shall mean a person who
served in the army or navy of the United States in the time of war
of the rebellion, and was honorably discharged therefrom.
“ 2. Any veteran desiring, under chapter 437 of the Acts of 1887,
appointment to office or employment in the service classified under
the civil service rules, without having passed any examination pro-
vided for therein, shall file an application for such appointment, stat-
ing, on oath: (1) his full name, residence and post-office address;
(2) the office he seeks ; (3) that ‘he desires appointment without hav-
ing passed any examination provided for by the civil service act or
the rules thereunder; (4) his service in the army or navy of the
United States in the time of the war of the rebellion, and discharge
therefrom ; (5) that he has not suffered loss of limb, or other physi-
cal impairment, which incapacitates; (6) his citizenship; (7) that
he does not habitually use intoxicating beverages to excess, and is
not a vender of intoxicating liquor; (8) that he has not within one
OPINIONS OF THE ATTORNEYS-GENERAL. 79
year been convicted of any offence against the laws of this Com-
monwealth.
“ Such application must be supported by certificates that the appli-
cant has all the qualifications required by law of veterans. Such
application, if for an ofifice or employment in the service of the Com-
monwealth or of the city of Boston, shall be filed in the office of the
commissioners in Boston; if for ofiiee or employment in the service
of any city other than Boston, it shall be filed with the local board
of examiners in such city.” ,
The commissioners request your opinion upon the question whether
this application, made under section 2 of chapter 501 of the Acts of
1895, in view of the definition of the term “application” made in
section 6 of the act, must be received as conclusive of qualification,
or whether, in view of the reference in section 2 of the act to the
civil service rule XlI., the commissioners can still investigate the
physical qualifications of the applicant?
We also ask, as involving apparently the Same question of power,
Can the commissioners, under the same circumstances, investigate
the moral qualifications of a veteran applicant under the act, pro-
vided his application conforms to section 6 of chapter 501 of the Acts
of 1895?
Very respectfully, CHAS. THEo. RUSSELL, Jr.,
Chairman.
0m. 28, 1895.
Hon. CHARLES THEODORE RUSSELL, Jr.,
Chairman of the Civil Service Commission.
DEAR SIR : ~—-I have the honor to acknowledge your letter, in
which, after Stating that a veteran soldier in a city outside of Boston,
admitted to be entitled to any preference provided by Statutes of 1895,
chapter 501, who is reported to the commissioners as receiving a pen-
sion from the United States for total disability, has applied under
section 2 of said act for appointment without examination on the
police force of such city, and has filed certificates from three citizens
of good repute in the community, stating that they know said appli-
cant to be fully competent to perform the duties, as provided by sec-
tion 6 of the act defining the word “ application” used in section 2
of the act, you ask my opinion upon two questions.
First.——Whether this application, made under Statutes of 1895,
chapter 501, section 2, in view of the definition of the term “ appli-
cation” in Section 6 of this act, must be received as conclusive of
80 MASSACHUSETTS CIVIL SERVICE.
the qualifications, or whether, in view of the reference in section 2
of the act to civil service rule XII., the commissioners still have
power to investigate the physical qualifications of the applicant.
Second. ——Can the commissioners under the same circumstances
investigate the moral qualifications of the applicant under the act,
provided his application conforms to Statutes of 1895, chapter 501,
section 6?
The considerations suggested in my letter to your Board, dated
July 5, 1895, furnish the answer to the above questions. I then
stated that I construed the act of 1895 to be amendatory of the
legislation already enacted upon the civil service; and that the rules
established by the civil service commissioners, in pursuance of the
authority vested in them, are valid and in full force, excepting so far
as the act of 1895 expressly repeals or modifies them.
Under the civil service rules it is necessary that the applicant for
appointment be physically able to perform the duties of his position ;
also that he be a person of good moral character. These require-
ments are still in force, and, in my opinion, the commissioners have
the right to determine them.
By Statutes of 1895, chapter 501, section 2, it is provided that
veterans who have made application for employment in accordance
with the second section of rule XII. of the civil service rules shall be
preferred in preference to all other applicants not veterans, except
women: “provided, that the age limit now established by the civil
service rules with regard to appointments in the police and prison
service and fire departments may be applied to such veterans.” It
may be urged that the proviso above quoted, authorizing the applica-
tion of a single one of the conditions (to wit, age) prescribed by the
civil service rules, must be taken to exclude the application to other
terms and conditions in said rules. If the section were taken alone,
there would be much force in the suggestion. But by Statutes of
1887, chapter 437, providing that veterans need not be examined, it
was further provided that “ age, loss of limb or other physical impair-
ment, which shall not in effect incapacitate,shall not be deemed cause
to disqualify under this act.” I think the more reasonable construc-
tion of the proviso in Statutes of 1895, chapter 501, section 2, is that
it was intended to repeal the proviso in Statutes of 1887, chapter 437,
by which age was not deemed cause for disqualifying a veteran.
Very respectfully yours, HosEA M. KNowLToN, '
Attorney- General.
OPINIONS OF THE ATTORNEYS—GENERAL. 81
Veteran Preference—Inspectors of Plumbing.
Inspectors of plumbing, appointed under chapter 455 of the Acts of 1894, are
not included in the service classified under civil service rules, and there-
fore the veteran preference act does not apply to their appointment.
APRIL 13, 1896.
Hon. H. M. KNoWLToN, Altorney~Geueral.
MY DEAR SIR: —The Civil Service Commissioners respectfully
request your official opinion upon a question involving the effect of
the soldier preference act (chapter 501 of Acts of 1895) upon pre-
vious legislation regarding inspectors of plumbing in cities and towns,
being chapters 477 of the Acts of 1893 and 445 of the Acts of 1894.
By amendment to civil service rules, which went into effect Feb. 1,
1888, the classification was extended to include “ Inspectors of work,
and all persons doing inspection service not included in schedule A ”
(rule VI., schedule B, class 7, report of 1895, page 73). The refer-
ence to schedule A is to persons performing services partly clerical,
and is immaterial to the question. (See class 3 of schedule A.)
At the time of this extension of the classification to include all
inspectors, there were under the city charter and ordinances of Boston
persons employed as inspectors in various departments, especially
water inspectors, and inspectors under the Board of Health and the
building department, sometimes designated as assistants and some-
times as inspectors, but all regarded as within the classification.
There were no inspectors of plumbing, by that name, or with duties
confined to the inspection of plumbing. There were, however, assist-
ants to the inspector of buildings; and, under city ordinances of
1892, chapter 17, it was provided, as part of the duty of that of‘ficer,
that “ he shall issue permits for doing plumbing work, and shall by
himself or one of his assistants inspect the plumbing work in a build-
. ing within forty-eight hours after a notice of the completion of such
work,” etc., “ and may appoint not exceeding twenty-four assistant
inspectors for duty in his department.” These positions were regarded
and admitted to be in the classified service. Examination for them
was upon general knowledge of all building inspection, and not con-
fined to plumbing. The chief inspector in his discretion made such
assignments to work and classes of inspection duty as he saw fit.
The commissioners merely examined and certified for appointment to
the general inspection force.
In 1893 the Legislature, by chapter 477, section 5, provided for
the appointment in each city and town having five thousand inhabi-
82 MASSACHUSETTS CIVIL SERVICE.
tants of one or more “ inspectors of plumbing, who shall be practical
plumbers,” and their duties are defined.
In 1894 the Legislature, by chapter 455, amended the previous act,
and provided for the appointment “of one or more inspectors of
plumbing, who shall be practical plumbers of at least five years’ con-
tinued practical experience, either as masters or as journeymen, dur-
ing the years next preceding the date of appointment, and who shall
hold office until removed by said board or inspector for cause, which
must be shown. All such inspectors shall before appointment be
subjected to an examination before the Civil Service Commission ”
(section 5).
Then in 1895 came the soldier preference act (chapter 501), with
the provisions of which you are familiar.
It is now claimed by veterans that, upon filing the required appli-
cation, they are entitled to appointment, either without examination,
or, if examination is still required under section 5 of chapter 455 of
the Acts of 1894, that they are entitled exclusively to appointment
upon passing such examination, in preference to any person not a
veteran, whatever his standing upon the list. In fact, it is claimed
that, if a veteran applies, we have no right to examine any but
veterans.
Upon the other hand, it is claimed by Mr. Thomas M. Wilson, an
applicant for the position, and not a veteran, that the act of 1894
creates a special office with peculiar qualifications, and that it is not
in the classified service, and he relies especially upon the language of
section 5, that all such inspectors shall before appointment be sub-
jected to an examination before the Civil Service Commission, —
arguing that this language is meaningless, if the positions were then
regarded as in the classified service. It may be added here that the
Act of 1894 calls for inspectors in cities and towns. Of course, the
latter are not in civil service classification. This may have some
bearing upon the question whether city inspectors were intended to be
included. Mr. Wilson had a prominent part in getting this plumbing
legislation, is familiar with it, and a man of intelligence.v I there-
fore enclose a copy of his letter to me upon the question, marked
“ Exhibit A.”
The building commissioner, April 8, addressed a communication to
the commissioners, a copy of which is enclosed, marked “Exhibit
B.” Upon April 10 be notified the commissioners that he had
appointed Thomas M. Wilson as inspector of plumbing in his depart-
ment. I enclose a copy of the notice, marked “ Exhibit C.” The
OPINIONS OF THE ATTORNEYS-GENERAL. 83
\
question is as to the legality of the appointment, under existing law,
assuming that veterans have applied for the position.
We request your opinion upon the following questions : —
1. Is the position of inspector of plumbing in a city, created by
section 5 of chapter 455 of the Acts of 1894, within the classification
provided by class 7 of schedule B of civil service rule VI.?
2. If so, musta veteran, under section 2 of chapter 501 of the
Acts of 1895, be appointed to it without examination, if he files the
required certificate that he has the qualifications required by this act
of 1894?
3. If the position is within the classified service, and veterans
apply for appointment to it, either with or without examination, can
persons not veterans also apply and be examined?
4. If question 3 is answered in the affirmative, can persons who
are not veterans, who pass the examination, be certified in preference
to examined veterans having a lower mark and standing upon the
examination ?
You will notice that, if you answer the first question in the nega-
tive, it will be unnecessary to consider the other questions submitted.
As we are notified that there is urgency in making an appointment
to the position, especially on account of the sanitary condition of
some of the school-houses of the city, an early decision by you will
be of public advantage.
By authority of the commissioners,
Yours very truly, CHAS. THEo. RUSSELL,
Chairman.
APRIL 17, 1896.
CHARLES THEODORE RUSSELL, Jr., Esq.,
Chairman, Civil Service Commissioners.
DEAR SlRz—I am of opinion that persons to be appointed under
the provisions of Statutes of 1894, chapter 455, section 5, should not
be included in the classified service of the commission, and therefore
that the veterans’ preference act does not apply to them. I send you
this brief note at this time, and will give my reasons at length next
week. Yours very truly, H. M. KNOWLTON,
Attorney- General.
84 MASSACHUSETTS CIVIL SERVICE.
Veteran Preference —- Public Ojficers as distinguished from Mere
Employment.
The court, in Brown v. Russell (166 Mass. 14), distinguishes between the
classification of public officers and mere employees under civil service
rules. The decision affects only the former.
The determination whether a position is a public oflice or a mere employment
depends upon the law creating the position and the particular facts regard-
ing its character and the duties to be performed.
It is decided that sheriffs and their deputies, coroners, constables, public
weighers of vessels, field drivers, assessors, surveyors of highways,
postmasters, commissioners appointed by the Governor, town liquor
agents, county commissioners, district attorneys, city physicians, city
engineers, town clerks and moderators, road commissioners, police offi-
cers, masters of houses of correction, superintendents and instructors
thereof, are public ofiicers; but every copying clerk or janitor of a public
building is not necessarily a public ofi‘icer.
It would seem that truant officers and draw tenders are public officers.
It would seem that clerks, copyists, recorders, book-keepers, agents under
schedule A of civil service rule VI., and foremen of laborers, engineers,
janitors, persons having charge of steam _\ boilers in school buildings,
Watchmen, drivers of prison Wagons, gatemen or guards in public parks
and ferries, and laborers, are not public officers.
MAY 6, 1896.
Hon. H. M. KNOWLTON,
Attorney-General, Commonwealth Building, Boston.
DEAR SrRz—General requisitions are received almost daily for
certification of persons to fill positions in the various classes of the
public service, classified under the civil service rules, without expres-
sion of a desire for the certification of veteran soldiers or sailors, or
any one of them, under civil service rule XII., prepared under chap-
ter 437 of the Acts of 1887 (the soldier exemption act).
In view of chapter 501 of the Acts of 1895 (the veteran preference
act), and especially of section 2, and of the recent decision and
opinion of the Supreme Judicial Court in the suit of Brown v. the Civil
Service Commissioners, in regard to that act, the commissioners
respectfully request your official opinion upon the following ques-
tions : -—
First. —-Whether, in certifications upon such requisitions (not
calling for veterans) for positions classified and described in the three
classes under schedule A, civil service rule VI., veterans who have
applied for appointment to such positions without examination under
section 2 of chapter 501 of the Acts of 1895 must be certified and
‘m
OPINIONS OF THE ATTORNEYS—GENERAL. 85
appointed under said section, as construed by the Supreme Judicial
Court in said opinion?
Second. — Under similar circumstances, must veterans applying
under said section of the act of 1895 for positions in class 1 of sched-
ule B, under civil service rule VI., be certified and appointed?
Third. — Must veterans so applying for positions in classes 5, 6, 7,
8, 9, 10, and 11 of said schedule B, or in any of such classes, be certi-
fied and appointed?
Fourth—Where requisitions are made for public laborers and
mechanics in schedules C and D under civil service rule XLIV. (not
expressly calling for veterans), must veterans who have applied be
certified and employed, in view of section 2 of chapter 501 of the
Acts of 1895 and the opinion of the court thereon?
The commissioners enclose a copy of the opinion of the court
referred to above. 4
Very respectfully yours, CHAs. THEo. RUssELL,
Chairman.
MAY 26, 1896.
Hon. CHARLES THEonoRE RUSSELL,
Chairman, Civil Service Commissioners.
DEAR Srnz—Your letter of May 6 calls for my opinion as to
whether sections 2 and 6 of Statutes of 1895, chapter 501, in view of
the case of Brown v. Civil Service Commissioners, 166 Mass., are in
force with respect to certain offices and employments set forth in
your letter. The four questions you propound comprehend practi-
cally the entire classification of offices and employments, which by
your rules are required to be filled by certification from your depart-
ment, excepting such as are plainly included within the terms of the
decision in the case above quoted.
The opinion of the court in Brown v. Civil Service Commissioners
does not hold that the veterans’ preference act is unconstitutional as
to positions in the service of the Commonwealth, which are mere
employments and are not offices. It only decides thatthe sections
under consideration, “so far as they purport absolutely to give to
veterans particular and exclusive privileges distinct from those of the
community in obtaining public office, cannot be upheld as enactments
within the constitutional power of the General Court.” How far the
Legislature may give preference to veterans in disposing of the many
employments which it creates and provides for, but which do not con-
stitute the employee a public ofiicer, the court in express terms refrains
from deciding.
86 MASSACHUSETTS CIVIL SERVICE.
But the reasoning of the court deals almost exclusively with the
question of public offices. Throughout the opinion a clear distinction
is made between public offices and public employments; and the
decision of the court may be fairly said to turn upon the proposi-
tion, as stated in the opinion, that ‘“ it is inconsistent with the nature
of our government, and particularly with articles 6 and 7 of our
Declaration of Rights, that the appointing power should be compelled
by legislation to appoint to public offices persons of a certain class in
preference to all others, without the exercise on its part of any dis-
cretion, and without the favorable judgment of some legally consti-
tuted officer or board designated by law to inquire and determine
whether the persons to be appointed are actually qualified to perform
the duties which pertain to the offices.”
There is no intimation in the opinion that the considerations which
apply to public officers would also be applicable to mere employments.
It is even suggested that such positions might be given to veterans
“partly in consideration of the service they render,-and partly in
recognition of and as a reward for the services which they have ren-
dered to the Commonwealth in the past.”
Without venturing to express an opinion whether the distinction
suggested is sound, or will be sustained by the court when the ques-
tion is directly raised, I think, inasmuch as positions which are
employments merely and are not public offices, are expressly ex-
cluded, not only from the reasoning of the opinion but from the
decision, that it is the duty of your Board to assume that the law
is still in force as to such positions. The presumption in favor of
legislative acts still binds your Board, excepting so far as the court
has plainly instructed you to the contrary. .
This raises the important question, What are public offices?
Here, again, the court abstains from laying down any general rule.
Indeed, Field, C.J., expressly says “it is sometimes difficult to
make a distinction between a public office and an employment.” As
is stated by the court, the terms “ public office ” and “ public officer”
are often used, and have acquired a well-understood signification.
The difficulty lies in the application of general definitions to particu-
lar cases. The determination of an individual case, especially one
that is near the line, may require an examination not only of the
statutes bearing upon it, but of all the facts and circumstances con-
nected with it. I prefer, therefore, to answer your questions gener-
ally, leaving particular cases to be determined as they arise.
Among those who are declared with more explicitness by the court

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OPINIONS OF THE ATTORNEYS-GENERAL. 91
Fourth—Upon the statement of the superintendent of streets
(Exhibit C), was Timothy F. Murphy legally appointed, without
requisition, to his present position, or is he outside the classified
service?
Yours very truly, CHAS. THEO. RUSSELL,
Chairman.
[EXHIBIT A.]
OFFICE 0P THE WATER COMMISSIONER,
CITY HALL, BOSTON, May 8, 1896.
WARREN P. DUDLEY, Esq, Secretary, Civil Service Commission.
DEAR SIR : —I have your letter in reference to the case of Superintendent
O’Brien, who is at present in charge of the Deacon system and waste of the
Water department. I should judge from your letter, where you say that he
has only laborers under him, that you have not received full information
in regard to his case. I forward you copy of the report of the city engineer
on the question of waste, also extract from section 10 of chapter 488 of the
Acts of 1895, “ An act to provide for a metropolitan water supply,” which
Show the importance of the waste division.
The organization of the division will be as follows: twenty to thirty
laborers, among them experienced laborers; two to four foremen; some
inspectors, a clerk, an engineer and a superintendent.
Superintendent O’Brien, while nominally carried in connection with the
income division, is not responsible to the general Superintendent of that
division, but directly to myself.
I am of the opinion that the waste division of the service is of the utmost
importance, and it is my intention to so administer it, both as regards pres-
ent methods and future, as to make it one of the most vital branches of the
department. This action is made necessary not alone by the power which
the Metropolitan \Vater Board has received from the Legislature on the
question of waste, and the report of the city engineer, but on sound busi-
ness principles. .
I am not aware of what the Civil Service Commission’s definition of a
superintendent may be; but, for the proper administration of the service
of the water depart-ment, it seems to me that Superintendent O’Brien is one,
not alone in name, but in work and responsibility.
Since receiving your letter I have been looking up the question of Super-
intendents, as far as what constituted a Superintendent, with my predecessor,
Commissioner Smith; and if the rule under which he acted were to be
applied to me, I could have superintendents without number. I say this
because of the fact that there is now connected with the income division
a superintendent, appointed in 1896, who is responsible to the general
superintendent of the income division alone. He has charge of nobody,‘—
in short, he is a general without an army. I have been informed that his
appointment is satisfactory to the Civil Service Commission.
Very truly yours, JOHN R. MURPHY,
Water Commissioner.
92 MASSACHUSETTS CIVIL SERVICE.
[EXTRACT FROM SEcTIoN 10 or CHAPTER 488 or THE AcTs or 1895.]
AN AcT TO PROVIDE FOR A METROPOLITAN WATER SUPPLY.
Said board . . . may inspect the water works and fixtures in any city or
town supplied wholly or in part from the works under their charge, and
may take all proper measures to determine the amount of water used and
wasted and to prevent the improper use or waste of water.
[ExTRAcT PRoM REPORT OF CITY ENGINEER JACKSON.]

Dry year capacity (gallons Cochituate), . . . 41,500,000
Dry year capacity (gallons Mystic), . . . . 7,000,000
Total, . . . . . . . . . 48,500,000
When reservoir N o. 5 is completed, the dry year capacity will be increased
14,000 million gallons.

AVERAGE MEAN

Average Daily Average Daily Per Cent. TElggggfilgnE
Consumption, Consumption, Increase '
1895. 1896. over 1895. 1895 1896
Gallons. Gallons.
January, . . . 61,004,200 73,747,100 20 . 9 28 . 8 24 . 9
February, . . . 71,858,300 77,817,400 8 . 3 24 . 6 28 . 6
March, . . . . 61,418,900 77,065,600 25.5 34.6 31. 9
April, . . . . 54,712,200 68,264,400 24 . 9 46 . 0 47 . 2


Under these circumstances the water supply is liable, through waste, to
become exhausted at any time.
[EXHIBIT B.]
STREET DEPARTMENT, CITY HALL,
BosToN, May 5, 1896.
Civil Service Commission, State House Extension.
GENTLEMEN : - Replying to your inquiry in regard to my appointment of
Edward Hayden as superintendent of inspectors in the permit division of
this department, I would say that he has full control and supervision of the
force of inspectors, clerks and messengers working on permits issued by
this division to any division or department of the city, or to any corporation,
company or citizen who requires a permit for the opening or use of the
public streets. As previously stated, a number of this force are paid by the
OPINIONS OF THE ATTORNEYS—GENERAL. 93
larger corporations, but are appointed by me and in the control of this
division, and are to be responsible for the faithful performance of their
duties to the superintendent of this division, making their reports to him or
his clerk; and he is to be held responsible to me for the entire division
force, making his reports directly to me. It is also within his duties to
drive about the city and personally superintend Work being done under the
inspectors, and make his report to this ofi‘ice upon the condition of this
work.
The Work of the permit division of this department is not alone for the
issuauces of permits for openings of the public streets for the telephone or
telegraph conduits and other structures, gas or water pipes, railroad tracks
or sewers, but also to master builders, contractors, drain layers, movers of
buildings, people who wish to project a shelf, sign or awning over the side-
walk, and for numerous other things for which the board of aldermen issue
an order. As previously stated in my letter of notice to you, I deemed it
advisable to place a man of experience in charge of this division, as I felt
justified in doing so on account of the increase of business.
Trusting that this explanation of the duties of the superintendent of this
division will be satisfactory to your honorable Board, I remain,
Yours respectfully, BENJ. W. WELLS,
Superintendent of Streets.
[EXHIBIT C.]
STREET DEPARTMENT, CITY HALL,
BosToN, May 5, 1896.
Civil Service Commission, State House Extension.
GENTLEMEN :--In reply to your communication of recent date, I would
state that Timothy F. Murphy was appointed superintendent of the patrol
division of the street department on the sixth day of March, 1896, and
immediately took charge.
In this position he has full charge of the push-cart division of the entire
city, and is responsible for the faithful performance of the work done by
this division, personally visiting the several districts covered by the regular
men daily, and none of his Work is clerical in its nature.
I am at the present time contemplating the extension of the patrol ser-
vice over the entire sections of the city (where block paving or asphalt con-
stitutes the street surface), in addition to the regular sweeping force as
now employed. If this is feasible upon the recommendations of the super-
intendent of the patrol division, it will necessitate the employment of an
additional force of foremen and inspectors to that now employed in the
street-cleaning division, to wit, nine. These latter are in the classified
service.
During the greater part of the year the business and a part of the resi-
dential sections of the city are swept- at night, and I deem it necessary to
have this work followed up by the patrol division in the day time; and in
94 MASSACHUSETTS CIVIL SERVICE.
order to accomplish this, I have placed Mr. Murphy to supervise the work
done (as at present) by the inspectors and force of the patrol division,
being responsible to me for the work performed by the patrol division of
this department.
Respectfully, BENJ. 1V. WELLS,
Superintendent of Streets.
JULY 17, 1896.
Hon. CHARLES THEODORE RUSSELL, Chairman.
DEAR SIR : —Your letter of May 16 States certain facts with rela-
tion to three persons recently appointed to office in the city of Bos-
ton, without certification by your Board, and asks my opinion as to
whether, upon those facts, they were legally appointed in view of the
statutes and rules relating to the civil Service. Your letter further
asks “ what, if any, is the distinction between a superintendent in a
city department, under a commissioner or head of the department,
and a foreman, as classified in class 6 of schedule B of civil service
rule VI.”
It is not always practicable to lay down general definitions suffi-
ciently broad and precise to cover all possible cases that may arise.
It has been the practice of this ofiice to refrain from attempting to
reply to inquiries calling for a statement of general principles; but
rather to determine specific questions as they arise. The general
question in your letter above quoted is within this rule. To under-
take to lay down in advance a clear distinction between a superin-
tendent and a foreman is not practicable nor necessary. It is possible,
however, to establish some general principles of construction of the
meaning and intent of the civil service statutes, and of the rules
created by your board in pursuance of those statutes, which may be
of assistance in the consideration of specific cases.
The civil service rules have, and are intended to have, only a lim-
ited application. Your Board has not undertaken, in the classifica-
tion established by its rules, to comprehend all the departments of
public Service with which under the statutes it is authorized to deal.
This right of limited application is recognized by the court. (Viol.
Opinion of the Justices, 138 Mass. 601.) Certain officers are ex-
cepted from the operation of the civil Service rules by law. Statutes of
1893, chapter 95, expressly exempts, among others, “ heads of any
principal departments of the Commonwealth or of a city.” Subject
to this and perhaps to some other exception in the Same statute, all
the appointive officers in a city government may be classified by your
rules. I do not understand, however, that you have attempted so to
OPINIONS OF THE ATTORNEYS—GENERAL. 95
include the entire civil service of cities. On the contrary, there are
many ofiicers, not heads of principal departments, who are not classi-
fied under your rules. There are officers exercising duties of super-
vision, superintendence and inspection, who, on the one hand, do not
come within the exception of the statutes exempting them from your
rules ; and who, on the other hand, are clearly not within the classifi-
cation established by the rules. (Vid. Opinions of the Attorney-
General, 1892, October 23; 1894, December 4.) So far as the
question under discussion is concerned, your rules only attempt to
classify such officers as are designated as “ foremen and sub-foremen
of laborers ” and “ inspectors of work.”
I assume that your general inquiry is intended to suggest the ques-
tion whether there is any intermediate ground between persons who
are “ heads of principal departments” under the statute of 1893, and
who are thereby exempted from the rules, on the one hand, and
“ foremen and inspectors,” on the other hand, who are in the classi-
fied service. If the classification of your Board were intended to be
comprehensive, there might be some ground for holding that it was
intended to include all persons doing the work of superintendents,
between the grade of a head of a principal department on the one
hand, and actual laborers on the other hand. But your rules, as
before stated, are intended to have a limited application only; and it
cannot be said, therefore, that such intermediate superintendents are
to be classed as foremen unless the meaning of the words “ foremen ”
and “inspectors ”_ actually require such an interpretation.
There is no absolute line of distinction between a superintendent
and a foreman. A foreman is a superintendent in one sense of the
word, and a superintendent may not be improperly called a foreman.
But the word “ foreman,” in your rules, is to be taken in its usual
and ordinary signification. As the word is commonly employed, it
undoubtedly means a person who has immediate charge and oversight
of a gang of laborers, directing them in their work and seeing that
they keep at work. On the other hand, a superintendent as applied
to civil offices, is one who has charge and oversight of a department
of government, either a principal or a subordinate department. He
is an officer to whom is entrusted responsibility, judgment and skill.
The distinction between a foreman under your rules and a superin-
tendent was well suggested by my predecessor, Mr. Pillsbury, when
he said, speaking of the rules of your Board, “it appears to me that
the civil service act and the rules should, in general, be so construed
as to distinguish between positions of routine, so to speak, which
96 MASSACHUSETTS CIVIL SERVICE.
ordinarily do not involve administrative or discretionary powers, on
the one hand; and. on the other, positions which involve the exer-
cise of judgment, discretion, authority and responsibility; and that
the general scheme is to include the former and not to include the
latter class within the system.” (Attorney-General’s Opinion, 1892,
October 23.)
This general distinction seems to me to be sound. A foreman of
laborers is entrusted only with the duty of seeing that his men keep
at work. The meaning of this word is fixed and modified by the
clause “ of laborers” which follows and limits it. A superintendent
has that general charge and oversight of the work of a department,
especially in its relation to the public, for whose benefit the depart-
ment was created; and, under the authority of his chief, if he him-
self is not the head of the department, represents the administration
of the government.
The foregoing principles appear to be conclusive of two of the three
cases submitted in your letter.
M. J. O’Brien has been appointed “ superintendent in the income
division” of the water department. His duties, as they appear by
the letter annexed to your communication, the statements of which
for the purposes of this inquiry I am to take as conclusive, are to
have charge of the Deacon system and waste of the water depart-
ment. This division employs twenty or thirty laborers, some of them
experienced laborers; two to four foremen ; some inspectors, a clerk
and an engineer. This division is intended to enforce the provision
of Statutes of 1895, chapter 488, section 10, which provides that the
Board “ may inspect the water works and fixtures of any city or town
supplied wholly or in part from the works under their charge, and may
take all proper measures to determine the amount of water used and
wasted and to prevent the improper use or waste of water.”
On these facts I do not think that it can be properly said that
O’Brien is merely a foreman of laborers. He has charge of a depart-
ment of work comprising laborers, inspectors, a clerk and an engineer.
His duties are not merely to see that laborers work faithfully; they
comprehend the administration of the powers and duties of the gov-
ernment, so far as they relate to waste in the public water supply.
Edward Hayden has been appointed “ superintendent of inspectors
in the permit division ” of the department of streets. His duties, as
stated in the letter annexed to your communication, comprise the
control and supervision of the force of inspectors, clerks and messen-
gers working on permits issued by the permit division to any other
OPINIONS OF THE ATTORNEYS—GENERAL. 97
department of the city, or to any corporation or company which re-
quires a permit for the opening or use of the public streets. A num-
ber of this force are paid by corporations requiring the opening of
the streets, and are under his control. It is stated to be the further
duty of Hayden to go about the city and superintend the work being
done under the inspectors, and report to the superintendent of streets
upon the condition of the work.
These duties obviously require not merely vigilance in keeping
laborers at work, but oversight, discretion and judgment as to the
general plan of the work to be done. On the facts I am unable to
say that Hayden is within the classification of foreman of laborers;
he is that and much more.
Timothy F. Murphy has been appointed “ superintendent of the
patrol division” of the street department. The letter annexed to
your communication states that “ he has full charge of the push-cart
division of the entire city, and is responsible for the faithful per-
formance of the work done by this division, personally visiting the
several districts covered by the regular men daily.”
This somewhat meagre enumeration of the duties of Murphy is not
sufficient to enable me to determine whether he is anything more than
a foreman, or not. Apparently his duties consist merely in seeing
that the men under him keep at work. If so, he is a foreman of
laborers, with sub-foremen under his charge, and should be appointed
under the civil service rules.
It is further stated, in the letter which purports to enumerate his
duties, that an extension of the system is contemplated, under which
the entire city will be included in Murphy’s department, and an addi-
tional force of foremen and inspectors employed. The letter to which
I refer was dated May 9. Whether any such extension as is pro-
posed in the letter has been made, or not, I have not been informed.
If further consideration of Murphy’s case is desired, I must request
to be advised more fully upon the facts.
Very truly yours, HosEA M. KNowLToN,
Attorney- General.
98 MASSACHUSETTS CIVIL SERVICE.
Classification of the Service—Deputy City Auditor of Boston.
Upon the facts stated, the position of deputy city auditor of Boston is not
within the classification provided under the civil service rules.
JUNE 7, 1898.
Hon. H. M. KNOWLTON, Attorney-General.
MY DEAR SIR:--The Civil Service Commissioners respectfully
refer to you copies of letters between this department and the city
auditor of Boston, and request your official opinion upon the question
whether the position of John S. Concannon, described as “ deputy
city auditor,” with the duties defined in the letter of instructions to
him, dated May 6, from the city auditor, with endorsement of the
mayor, comes within the classification provided by schedule A under
civil service rule VL?
Respectfully submitted, in behalf of the commissioners,
CHAS. THEO. RUSSELL,
Chairman.
JUNE 30, 1898.
CHARLES THEODORE RUSSELL, Esq., Chairman.
DEAR SIR : —-Your letter of June 7 requires my opinion upon the
question whether the position of deputy city auditor comes within
the classification provided by schedule A in civil service rule VI. of
the rules of the Civil Service Commissioners.
The duties of the office are defined in a letter from the city auditor,
dated May 9, 1898, from which I quote the following : —
All requisitions upon the Civil Service Commission for the certification
of names, and all communications from heads of departments and divisions
to the Civil Service Commission will hereafter pass through your office and
be made a matter of record there; and it is also desired, if such an arrange-
ment can be made with the Civil Service Commission, that all certifications
of names and other communications from the Civil Service Commission to
heads of departments Shall equally pass through your hands.
Your office is also to Serve as a bureau of information, both for the depart-
ments and for the public, as to all matters pertaining to the civil service
laws and rules and the application thereof; you will be expected to be
thoroughly familiar with the laws and rules, with any decisions or opinions
of the Attorney-General relative to the construction of the Same, and with
the practice and rulings of the Civil Service Commission. You will be
expected to know just what positions are specifically classified, and to have
Such general knowledge as can be obtained at the office of the Civil Service
Commission as to the condition of the eligible lists.
OPINIONS OF THE ATTORNEYS-GENERAL. 99
If, in the performance of these duties, it becomes necessary or desirable
for you to consult with the law department, you can hold such consultation
at any time informally, or request a formal opinion upon any point through
me.
You will be expected to inspect, so far as possible, all the pay rolls of
the city, and satisfy yourself that all persons now upon such pay rolls are
legally employed, and to see that any new names appearing upon the pay
rolls are properly there, either through comparison with the certifications
of the Civil Service Commission or through satisfying yourself that the
positions filled do not come under the civil service law or rules.
You will be expected to prepare periodically such statistical information
as to numbers of men employed in different capacities, discharges, new
appointments, etc., as may be desired by the board of statistics. While
your duties come in a general way under the auditing department, the
work specially assigned to you is in large part work which this department
has not heretofore undertaken to perform, and you will be given an office
distinct from the regular ‘service of this department.
Schedule A under civil Service rule VI. includes the following posi-
tions, to wit: “ Clerks, and other persons, under whatever designa-
‘tion, rendering services as copyists, recorders, book-keepers, agents,
7
or any clerical, recording or similar service ; ’ also “inspectors,
agents, almoners, and all persons under whatever designation whose
duties may be in part clerical.” In previous opinions given to your
Board by this office I have stated that in my judgment the civil ser-
vice act and the rules established thereunder should in general be
so construed as to distinguish between positions of mere routine,
which ordinarily do not involve administrative or discretionary powers,
on the one hand, and those, on the other hand, which involve the
exercise of judgment, discretion, authority and responsibility; and
that the general scheme of the act includes the former and does not
include the latter class. (Attorney-General’s Opinions, Oct. 12,
1892, and July 17, 1896.)
This definition seems to me to be conclusive of the present case.
Assuming that the letter of instructions above quoted correctly defines
the duties of the deputy city auditor, it is plain that the duties of his
ofi‘lce, involving, as they do, the exercise of judgment, discretion,
authority and responsibility, come within the latter class, and are not
within the fair scope of the classification in the schedule referred to.
I am of opinion, therefore, that the duties of the deputy city audi-
tor, as above stated, are not such as to bring the office within the
classification established by your rules.
Yours very truly, HosEA M. KNOWLTON,
Attorney- General.
100 MASSACHUSETTS CIVIL SERVICE.
Soldiers enlisted for War with Spain —- Right to make Temporary
Appointments.
Under chapter 447 of the Acts of 1898, where vacancies in positions in the
classified service occur by reason of the enlistment of incumbents, appoint-
ing officers cannot make temporary appointments except by requisition
under the civil service rules.
JUNE 24, 1898.
Hon. HOSEA M. KNOWLTON, Attorney-General, Boston, Mass.
DEAR SIR : — I am directed by the Civil Service Commissioners to
call your attention to chapter 447 of the Acts of 1898, a copy of
which I enclose herewith, and to respectfully ask your opinion as to
whether or not, under said law, appointing ofiicers have the right to
fill temporarily vacancies in the service without calling upon the Civil
Service Commissioners, in cases where the vacancies are in positions
classified under chapter 320 of the Acts of 1884 and the civil service
rules thereunder, and which, except for the law referred to, would be
filled by requisition upon the Civil Service Commissioners.
An early reply will greatly oblige the commissioners.
Very respectfully yours, WARREN P. DUDLEY,
Secretary.
JULY 28, 1898.
WARREN P. DUDLEY, Esq, Secretary, Civil Service Commission.
DEAR SIR:—Your letter of June 24 requests the opinion of the
Attorney-General upon the question whether, under Statutes of 1898,
chapter 447, appointing officers have the right to fill, temporarily,
vacancies in their departments in cases where the positions are classi-
fied under the civil service rules, without making a requisition upon
the Civil Service Commissioners.
The statute in question is as follows :—
Heads of departments, boards, commissions and superintendents of state
institutions having in their employ men who desire to enlist under the call
of the President of the United States for service in the war now existing
between the United States and Spain are hereby authorized to grant leave
of absence, without pay, to men mustered into the volunteer service of the
United States, until they are honorably discharged therefrom; and said
ofiicials are hereby authorized to fill temporarily any vacancies occurring
by reason of such mustering into the United States service.
OPINIONS OF THE ATTORNEYS—GENERAL. 101
The purpose of this statute is not to suspend or repeal the civil ser-
vice laws and rules. It was to enable men holding positions in the
civil service to enlist in the service of the United States without los-
ing their positions. Men who muster into the volunteer service of the
United States are, under the provisions of this statute, to be granted
leave of absence without pay, and the appointments to the vacancies
thus created are not permanent, but temporary.
The only authority for temporary appointments without requisition
upon the Civil Service Commission is section 1 of rule XLI., which
provides as follows: -
Appointments . . . for temporary service shall be made in accordance
with the civil service rules, except in case of emergency, where the public
business would suffer from delay in filling the position, as herein provided.
In no case shall such appointment or employment for an emergency con-
tinue for more than ten days, and no reappointment or employment of the
same person, or of another to the same position at the end of such period,
shall be allowed.
It is obvious that this rule would not authorize temporary appoint-
ments under the statute above quoted, without making requisition
upon the Civil Service Commissioners. The appointment, though
temporary, must be made under civil service rule XXVL, which pro-
vides that “ Whenever there is a vacancy to be filled in the classified
service, the appointing officer or power shall make requisition upon
the commissioners for the names of eligible persons.”
The statute does not repeal this rule.
Very truly yours, HosEA M. KNoWLToN,
Attorney- General.
INDEX.
A.
Page
Act, civil service . . . . . . . . . . . . . . 3
Alderman, recommendation of . . . . . . . . . . . 4
Application . . . . . . . . . . . . . . . 7
must be filed by veterans desiring appointment without examination . . 32
must be under oath . . . . . . . . . . . . 12
not received from any vender of intoxicating liquor, or person habitually
using intoxicating beverages to excess, or any person convicted of any
offence against the laws within the year . . . . . . . . 4
statements contained in . . . . . . . . . 7, l2
Appointing officers cannot receive or consider recommendations made by senators
and others, except as to character and residence of applicants . 4
to send notice of selection, rejection, transfer, promotion, etc. . . . . 9
Appointments must be reported . . . . . . . . 9
of veterans . . . . . . . . . . . . . . 22, 58
provisional . . . . . . . . . . . . . . 67 76
Assessments for political purposes . . . . . . . . . . 4, 5
Attorney-General may file information . . . . . . . . . 26
opinions of . . . . . . . . . . . . . 58-101
Boards of examiners . . . . . . . . . . . . . 8
0.
Certification of veterans . . . . . . . . . . . . 22
Certiorari, petition for, dismissed . . . . . . . . . . 30
Chief examiner, appointment, duties and salary of . . . . . . . 8, 13
Chief superintendents . . . . . . . . . . . . 7
Chiefs of police . . . . . . . . . . . . . . 7
Citizenship . . . . . . . '. . ‘. . . . . . 67
Civil service act and amendments . . . . . . . . . . 3-26
Civil service law . . . . . . . . . . . . . . 3-26
amendments of . . . . . . . . . . . . . 10-26
constitutional . . . . . . . . . . . . . 27
Classification of the service . . . . . . . . . . . 98
Clerk not an elective oflicer . . . . . . . . . . . 63
Commissioners, expenses of . . . . . . . . . . . 8
how appointed . . . . . . . . . . . . . 3
may appoint chief examiner and secretary . . . . . . . 8
may summon witnesses . . . . . . . . . . . 14
104 INDEX.
Commissioners, salary of . . . . . . . . . . 3
shall keep records of all proceedings . . . . . . . . . 9
term of service . . . . . . . . . . . . . 3
to prepare rules . . . . . . . . . . . . . 3
to report to General Court . . . . . . . . 4
Constitutional, civil service law . . . . . . . . . . . 27
Contributions for political purposes . . . . .
Conviction of offence against the laws within the year . . . . . 4, ll, 67
Councilman, recommendation of . . . . . . . . . . 4
D.
Decisions of supreme judicial court . . . . . . . . . . 27-57
Deputy city auditor of Boston . . . . . . . . . . . 98
not within classification . . . . . 98
Discharges to be reported to commissioners . . . . . . . . 9
Disqualifications . . . . . . . . . . . . . . 4
Election as distinguished from appointment . . . . . . . . 61
Elections, ofiice holders forbidden to use their ofiicial authority . . . . 5
Elective ofiieers . . . . . . . . . . . . . . 61
Eligible list open to inspection . . . . . . . . . . . 19, 22
Engineers of school buildings in Boston . . . . . l3
Examinations, no questions as to political or religious opinions . . . . 7
shall be practical and impartial . . . . . . . . . . 7
Examiners, boards of . . . . . . . . . . . . 8
Executive council, confirmation by . . . . . . . . . . 7
Exemption of veterans from examination . . . . . . . . . 22
Exemptions from classification . . . . . . . . . . 7, 15, 21
Extension of classification . . . . . . . . . . . . 16
E.
Fire service of Boston . . . . . . . . . . . . 19, 20
call force . . . . . . . . . . . . . . 19
of Somerville . . . . . . . . . . . . . 24
Foremen . . . . . . . . . . . . . . . 89
I.
Information, Attorney-General may file . . . . . . . . . 26
Investigations, commissioners may summon witnesses . . . . . . 14
J.
Janitors of school buildings in Boston . . . . . . . . . 13
Judicial ofiicers, exemption . . . . . . . . . . . 7, 21
Laborers . . . . . . . . . . . . . . . 20,24
age limit recognized . . . . . . . . . . . . 23
.in cities . . . . . . . . . . . . . . 20
INDEX. 105
Page
Laborers, registrar of . . . . . . . . . . . . . 17
registration of . . . . . . . . . . . . 24
requisitions for young men . 23
when allowed to register . . 24
Law, civil service . . . . . . . . . . . . . 3-26
amendments of . . . . . 10-26
Liquor, city shall not pay for . . . . . . . . 6
no application received from a person habitually using, to excess . 4
use of . 4, 6, 67
venders of . . . . . . . . . . . . 4
M.
Medal of honor . . . . . . . . . . . . 23
Military service, leave of absence granted employees for . . . . 25
restoration after . . . . . . . . . . . . . 25
N.
Notice of selection, appointing officer to send . . . . . . . . 9
0.
Office holders forbidden to use their official authority and influence in certain cases 5
Officers included in civil service law . . . . . . . . . . 61
Offices not classified . . . . . . . . . . . 7, 15, 21
Oflicial authority, corrupt use of . . . . . . . . . . 4, 5
Opinions of Attorneys-General . . . . . . . . . 58—101
Overseers of poor, employee of . . . . . . . . . . . . 61
P.
Payment by piece, instead of by time . . . . . .
Penalty for violations of rules . . . . . . . .
Politics not to be revealed in examinations . .
Preference, veteran . . . . . . .
9, 19, 23, 27
. 6, 10, 13, 17, 22, 23, 48,67, 68
64
7
Probation . . . . . . . . . . . . 6
Promotion . . . . ., . . . 6, 67
to be reported to commissioners . . . . . . . . . 9
veteran preference . . . . . . . . . . . . 6
Provisional appointment . . . . . .
Public oflicers as distinguished from mere employment . . . . . .
list of . . . . . . . . . . . . . . .
Q.
Quo warranto, Attorney-General may file . . . . . . . .
R.
O O O O Q I O I I O I O I .
Recommendations from senators and others, except as to character and residence,
cannot be received or considered by appointing officers . .
67
84
84
26
67
10.6 INDEX.
Removals to be reported to commissioners
Refreshments, wines, liquors, cigars, etc. . . . . . .
Registrar of labor . . . . . . . . . .
Religious belief not to be revealed in examinations .
Repealed statutes . . . .
Reports, appointing officers to make .
Representative, recommendation of . . . . .
Residence . . . .
Resignation must be reported
Rules, approved by Governor and Council
given general or limited application . . . .
made applicable to city of Boston only, are vali
may be altered or rescinded . .
penalty for violation of . . . . . . . . .
prepared by commissioners and approved by Governor and Council
publication of . . . . . . . . . .
shall be published and printed for distribution . . . .
S.
10, 13, 17, 2s
9, 19, 23, 27
Page
. 6
. 17
. 7
9
9
4
67
9
3, 4
. e, 27
29
4
3,4
. 8,11
. 8,11
.13, 16
. 1s
8, 10, 12
. 22
4
100
22
School committee, appointments by .
School janitors in Boston . . .
Secretary, appointment and salary of
Selection to be made from names certified .
Senator, recommendation of . . . . . . . . . .
Soldiers enlisted for war with Spain . . . . . . .
Soldiers’ exemption . .
preference . . . . .
. 6, 10, 13, 17, 22, 23, 48, 67, 68
Somerville fire department . . . . . . 24
Subscriptions for political purposes . . . . . . . . . 4, 5
Superintendents not classified eo nomine under rules existing in 1896 . . 89
Supreme judicial court, decisions of . 27-57
T.
Teachers exempted . . . . . . . . . . . 7
Temporary appointments . . . . . . . 100
Towns, provisions of civil service act extended to . . . . . 16
Truant officers in Boston . . . . . . . . . . . 16
V.
Venders of intoxicating liquors cannot apply . . . . . . 4
Veteran preference act . . . . . . . . . . . . 67, 68
extent and construction of . . . . . . . . . 67
requirements as to age, height and weight . . . . . . 67, 80
Veterans, absolute right to appointment . . . . . . . . 58
certification of . . . . . . . . . . . . 22
desiring appointment without examination must file application 32
exempt from examination . . . . . . . . ._ . . 22, 48
having equal standing with others, not veterans, must be appointed . 58
in labor service . . . . . . . . 67
may be appointed without examination . . . . . . .
INDEX. 107
Veterans, may be preferred in labor service if found competent . . . . 48
meaning of word veteran . . . . . . . . . . . 19, 21
moral character . . . . . . . . . . . . . 78
not to be removed without a hearing . . . . . . . . . 23
physical ability . . . . . . . . . . . . . 22, 78
preference act . . . . . . . . . . . . . 67, 78
preference in appointments and promotions . . 6, 10, l3, 17, 22, 23, 48, 67, 68
requirements as to age, height and weight . . . . . . 67, 80
right not affected by provisions of city charter . . . . . . 58
unexamined, cannot take precedence of civilians on eligible list . . . 37
who pass examination preferred in appointment to all male persons not vet-
erans . . . . . . . . . . . . . . . 48
Violations of civil service law and rules . . . . . . . 9, 19, 23, 27
W.
War, restoration to public service . . . . . . . . . . 25
Wines, liquors, etc., city shall not pay for . . . . . . . . 6
Witnesses, commissioners may summon . . . . . . . . . l4
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