JOSEPH A. CIERI vs. COMMISSIONER OF INSURANCE & others.

KIRK, J. This is a petition for a writ of mandamus filed under G. L. c. 31, Section 46A, to compel the Commissioner of

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Insurance (Otis M. Whitney), hereinafter referred to as the respondent, and the civil service commission to restore the petitioner, without loss of compensation or other rights, to his position as a member of the board of appeal on motor vehicle liability policies and bonds in the division of insurance.

The single justice of this court reserved and reported the case to the full court without decision, upon the pleadings, a stipulation, and a statement of agreed facts.

The petition, the answer thereto, and the statement of agreed facts disclose the following. On May 8, 1957, Joseph A. Humphreys, then Commissioner of Insurance, designated the petitioner as his representative on the board of appeal in the division of insurance in accordance with G. L. c. 26, Section 8A, as amended. [Note page182-1]

By the terms of the designation thus made, to be effective May 8, 1957, the petitioner was to serve as a member of the board "during the period of time this designation remains unrevoked." Mr. Humphreys' term as Commissioner of Insurance expired April 21, 1959, and on that date the respondent was qualified as, and assumed the duties of, Commissioner of Insurance. The respondent never designated the petitioner as his representative under G. L. c. 26, Section 8A, but the petitioner, nevertheless, continued to serve satisfactorily on said board until January 25, 1961. On January 11, 1961, the respondent notified the petitioner that he had designated another person, effective January 26, 1961, to act as his representative on the board and that

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the designation of the petitioner would terminate January 25, 1961. The petitioner, admittedly a veteran within the meaning of G. L. c. 31, Section 21, requested a hearing by the respondent, purportedly under the authority of G. L. c. 31, Section 43, and G. L. c. 30, Section 9A (the Veterans' Tenure Act, so called). When the respondent denied this hearing, the petitioner requested and obtained a hearing by the civil service commission which thereafter affirmed the action of the respondent.

It is the contention of the petitioner that, as a veteran holding the position of designee of the Commissioner of Insurance on the board of appeal, he was entitled by virtue of the provisions of the Veterans' Tenure Act (G. L. c. 30, Section 9A) to be separated involuntarily from his position only in accordance with the method prescribed by the civil service laws (G. L. c. 31, Sections 43 and 45), that the respondent's denial of a hearing constituted noncompliance with such prescribed method, and that he has therefore been illegally removed and is entitled to reinstatement by writ of mandamus under G. L. c. 31, Section 46A.

The central question is whether the petitioner comes within the terms of the Veterans' Tenure Act (G. L. c. 30, Section 9A) which reads in part: "A veteran, as defined in section twenty-one of chapter thirty-one, who holds an office or position in the service of the commonwealth not classified under said chapter thirty-one, other than an elective office, an appointive office for a fixed term or an office or position under section seven of this chapter, and has held such office or position for not less than three years, shall not be involuntarily separated from such office or position except subject to and in accordance with the provisions of sections forty-three and forty-five of said chapter thirty-one to the same extent as if said office or position were classified under said chapter. . . ."

The parties have agreed that the position held by the petitioner "was not an office or position classified under G. L. c. 31, was not an elective office and was not that of a confidential secretary under Section 7 of c. 30."

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We are of the opinion that the petitioner does not come within the terms of the statute because, for one reason, he has not held his position for the prescribed length of time. Even assuming, as the petitioner contends, that having been originally designated by former Commissioner Humphreys on May 8, 1957, the petitioner thereafter "served the Commonwealth in his own right" in an "independent" office or position, the fundamental fact remains that the petitioner's right to hold the office and exercise its powers stemmed directly from and depended wholly upon the appointing power of the Commissioner. Under G. L. c. 26, Section 8A, the Commissioner may prescribe the duration of the period for the designee to act as his representative, may designate a different representative from time to time, and regardless of the terms of the designation, is free to revoke it at any time. Because the tenure of the petitioner derives from his designation by the Commissioner, it is limited and circumscribed not only by the terms of such revocable designation but also by the tenure of the Commissioner himself. "It is the general rule of the common law apart from statute that a public officer cannot give an appointee a tenure of office beyond his own. Commonwealth v. Higgins, 4 Gray 34, 35. Opinion of the Justices, 239 Mass. 603, 605." Opinion of the Justices, 275 Mass. 575, 579. Howard v. State Bd. of Retirement, 325 Mass. 211, 213. Thus, the designation by Commissioner Humphreys, regardless of its terms, could not operate to give the petitioner tenure beyond the date of the Commissioner's own tenure which expired on April 21, 1959. And since, as the parties agree, the respondent never designated the petitioner as his representative, the petitioner's tenure extended only from May 8, 1957, to April 21, 1959, a period of less than two years. Whatever time he served in his position after April 21, 1959, was simply a holding over for public convenience and conferred no right for any defined period. "It is not a part of the necessary tenure of his office. . . . Whether a person thus holding over is a de facto or a de jure officer is not germane to the . . . [question] presented and need

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not be considered." Opinion of the Justices, 275 Mass. 575, 579. Wardwell v. Leggat, 291 Mass. 428, 430-431. The petitioner, therefore, has not "held such office or position for not less than three years" within the meaning of the Veterans' Tenure Act, G. L. c. 30, Section 9A.

The conclusion follows that since, as the parties have agreed, the position held by the petitioner was not classified under G. L. c. 31, and since, as we have found, he has not held his position for the time prescribed by G. L. c. 30, Section 9A, the petitioner was not entitled to a hearing under G. L. c. 31, Section 43, and was accordingly not illegally removed from his office.

What we have said disposes of the case on its own particular facts. We prefer, however, to base our decision on broader grounds. Notwithstanding the salutary purpose of G. L. c. 30, Section 9A (see Opinion of the Justices, 324 Mass. 736, 740), we are of the opinion that the position of representative of the Commissioner of Insurance on the board of appeal on motor vehicle liability policies and bonds, is not, as a matter of legislative intent, within the sweep of the Veterans' Tenure Act. It has already been decided that the protection of that act does not necessarily extend to every position which is not expressly excluded from its provisions. See Sullivan v. Committee on Rules of the House of Representatives, 331 Mass. 135, 137. The aim of G. L. c. 26, Section 8A, establishing the board of appeal, as disclosed by its language, its history, and the very nature of the positions created by it, leads us to the conclusion that G. L. c. 30, Section 9A, is not applicable to it.

Without repetition of the specific language of G. L. c. 26, Section 8A, it is clear that the board membership consists of the insurance commissioner, the Registrar of Motor Vehicles, and an Assistant Attorney General. The first two officials named are permitted to act vicariously. It is likewise clear that the legislative objective is to place the main responsibility for the policy and operations of the board upon the Commissioner of Insurance. The board serves in his division. The Commissioner may sit as a member of the board

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for as long as, and at any time, he wishes during his term of office; he may designate in writing a representative to sit in his place; he may so designate successively an indefinite number of such representatives during his term of office; the secretary of the board may act as his representative only if designated by him. The predominance of the responsibility of the Commissioner is emphasized by the legislative prescription that he, or his designated representative, be chairman of the board.

It seems obvious that the Legislature not only intended that the designation of a representative be a strictly personal prerogative of the Commissioner, but also that it intended and expected that the designee serving at the pleasure of the Commissioner reflect, at the risk of replacement, the policies of the incumbent Commissioner in the actual workings of the board whose decisions sensitively affect large numbers of people in the Commonwealth.

With regard to the seeming conflict between the provisions of the Veterans' Tenure Act and G. L. c. 26, Section 8A, we think it appropriate to paraphrase what Chief Justice Qua said on another occasion (Howard v. State Bd. of Retirement, 325 Mass. 211, 213), that "[Section 8A of c. 26] is still in the General Laws." Moreover, the original design of the statute, as we have outlined it, was impliedly reaffirmed by the Legislature in St. 1947, c. 94, [Note page186-1] one year after the enactment of G. L. c. 30, Section 9A. We think it is highly improbable that the Legislature intended that a veteran-designee who has served three years as a representative of a Commissioner (whose statutory term is three years, G. L. c. 26, Section 6) should thereby become a permanent member and the permanent chairman of the board of appeal on motor vehicle liability policies and bonds, subject only to removal under G. L. c. 31, Sections 43 and 45, thus superseding succeeding

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Commissioners of Insurance in the discharge of the responsibilities and duties reposed in them by G. L. c. 26, Section 8A.

It is unnecessary to discuss the demurrer of the civil service commission.

Petition dismissed.