CITY OF HAVERHILL vs. COMMISSIONERS OF CIVIL SERVICE.

PIERCE, J. This is an appeal by the city of Haverhill from a decree of the Supreme Judicial Court in equity dismissing a bill of complaint brought by the city against the commissioner and associate commissioners of civil service, praying that the respondents be restrained "from classifying the office of director of hospitalization of the city of Haverhill under the civil service."

It appears from the record that the commissioner of civil service had had correspondence with the city clerk relative

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to the question whether the position of director of hospitalization was under civil service and on November 22, 1932, had sent the city clerk a letter which reads: "Referring to our correspondence in relation to the position of Director of Hospitalization, I have carefully reviewed the matter and am of the opinion that this position is classified under Civil Service. Formal requisition should, therefore, be made to fill the position. I am enclosing a blank for your use." The city contends that the position is exempt from civil service under G. L. (Ter. Ed.) c. 31, § 5, which exempts "officers elected ... by a city council" and also "heads of principal departments ... of a city."

Before March 24, 1931, the city of Haverhill had certain hospitals which were managed and controlled by different superintendents within the civil service. These several superintendents under the then ordinances were not officers elected by the city council, nor were they heads of principal departments. Indeed, by the terms of the ordinance "Hospitals" were created as subdepartments of the administration and were assigned to the main department of "Health and Charities" which was in charge of a member of the municipal council known as the commissioner of such department.

By St. 1931, c. 123, and in accordance with the conditions and terms of a decree of the Supreme Judicial Court, the city of Haverhill was authorized "to establish and maintain public hospitals and to acquire the Hale Hospital provided for such purposes." Section 2 provides in part that "The management and control of all property received under this section shall be in said city through the trustees designated in section three. All employees of said hospital at the time the said city acquires the same shall continue to perform their usual duties as temporary employees of said city upon the same terms and conditions as existing at the time of said acquisition and unless removed for cause or appointed to permanent positions, prior to the expiration of six months from the date of such acquisition, shall become permanent employees of said city and shall thereafter hold office under civil service. Prior to the expiratian

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of such period they may be appointed to permanent positions without civil service examinations." Section 3 reads: "The members of the municipal council of said city shall be the trustees of all municipal hospitals of the said city, including the General Stephen Henry Gale Hospital, and the said Hale Hospital if acquired as provided under section two." In pursuance of St. 1931, c. 123, §§ 1, 2, 3, the city of Haverhill acquired and established public hospitals including the Hale Hospital. By reasons of economy and efficiency the positions of superintendent of the various hospitals were abolished on November 17, 1931, and on November 24, 1931, "George J. Connor was . . . duly elected Director of Hospitalization Pro-tempore, to serve without pay." On January 26, 1932, an order was passed in the municipal council which reads: "Ordered: That there be elected for the term from February 1, 1932, to the 1st Monday of January 1933, a Director of Hospitalization who shall conduct the business affairs of the public hospitals of the City of Haverhill except as to such matters that are subject to the management and control of the trustees of said hospitals and as to such matters, said Director shall act only at the request of said trustees." On the same date William W. Savage was elected director of hospitalization and was serving in that capacity at the date of the bill of complaint. The trustees of the municipal hospitals, that is the members of the city council, then passed rules and regulations defining "as far as is practicable, the duties and the relations of the several officials and employees connected with the Municipal Hospitals." The rules and regulations are quoted at length in the record and define with great detail the powers and duties of the director of hospitalization. The city of Haverhill under the authority of St. 1931, c. 123, § 2, acquired title to the Hale Hospital property; it, apparently, thereafter had title to all municipal hospitals of the city with the management and control of them through the trustees created by § 3.

We think the municipal council of Haverhill had no authority to create the office of director of hospitalization, with duties measured by rules and regulations imposed

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upon the incumbent thereof by the municipal council in its trust capacity. The powers conferred and the duties imposed upon the director of hospitalization are not such as are ordinarily performed by a mere employee. His duties are such as might properly be termed official, but in the circumstances here disclosed the official who holds the position of director of hospitalization does so under the rules of the board of trustees and not as an officer of the municipal council. It follows that the office, or rather the incumbent of the office, of director of hospitalization of the city of Haverhill is subject to the civil service laws, G. L. (Ter. Ed.) c. 31, and that such incumbent is not exempt therefrom because the duties of that office are commonly exercised by a city official. In passing it is to be noted that it is questionable whether the plaintiff has any standing, has any substantive right to be vindicated in any court be it law or equity. Since the practical result to the plaintiff must be the same in any event, there is no objection to stating the grounds of substantive law on which it rests.

Decree affirmed.