OPINION OF THE JUSTICES TO THE GOVERNOR AND COUNCIL.

To His Excellency the Governor and the Honorable Council of the Commonwealth of Massaschusetts:

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 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 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 examination 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 provided that

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certain classes of officers "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 or number of applicants, and plainly refers to the fourteenth section of the civil service law, providing for giving preference to soldiers and sailors.

The provision that "age, loss of limb, or other physical impairment, which shall not in fact 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 soldiers and sailors out of the jurisdiction and supervision of the commissioners. Considered as a part of the civil service law it has force and effect, 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 commission ers to make any rules, in the future, which are inconsistent with it.

The civil service law made a radical change in the method of appointing such officers and servants as are within its scope. Its scheme is that all such appointments should be under the supervision of the civil service commissioners, who are to determine the qualifications 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 selection and appointment, which rules, when approved by the Governor and Council, have the force of laws, and are binding upon the appointing officers.

The statute and the rules made under it establish certain requirements or conditions, which must be complied with before

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an appointment will be made. Thus, among other things, it is required that an application must be made to the civil service commissioners, stating 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 vender of intoxicating liquor, or who habitually uses intoxicating 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 requirement. 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 office 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 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 proposed, 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, 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

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office or employment to the civil service commissioners, as required by chapter 320 of the Acts of the Legislature of 1884 and the rules of the civil service commissioners made there under.

The second question is general, and points out no particular question 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 question. 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.

Mr. Justice Devens does not concur in this opinion, and requests us to state that in his view the statute of 1887, chapter 437, in providing 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 commissioners made under the provisions of said act, exempts them from any investigation by the civil service commissioners of their qualifications, 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.