The plaintiffs, twenty-seven cities and towns, brought this bill in equity seeking declaratory and injunctive relief against the Civil Service Commission and the director of civil service of the Commonwealth (director). The bill sought to compel the defendants to comply with certain provisions of St. 1972, c. 226 (c. 226), amending G.L.c. 31, § 48A. After a trial in the Superior Court the judge entered a final decree declaring c. 226 constitutional in its entirety and ordering compliance therewith. The defendants appeal from this decree. The judge made findings of fact, rulings and an order, and the evidence is reported.
The only issue presented in this appeal is the constitutionality of c. 226 which is reproduced in the margin.
The main constitutional infirmity alleged in c. 226 is in the different treatment it accords residents of a city or town of less than one-year's duration prior to application for examination contrasted to that afforded to those with a longer period of residence. The preference given the latter group which meets the durational residence requirement, it is argued, works a penalty on those otherwise equally qualified applicants who have exercised their constitutionally protected "right to travel." Therefore the defendants contend that, absent a compelling State justification, the statute violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In making this argument the defendants rely on a number of cases decided in the United States Supreme Court in which durational residence requirements conditioning various rights, services, or benefits have been held
It cannot be gainsaid that c. 226 accords more favorable treatment in the process of selecting police officers to established residents of a town than to newcomers. To some extent, therefore, the statute attaches a cost to the exercise of the right to travel.
It is certainly true that the opportunity to earn a living is a fundamental right in our society. Truax v. Raich, 239 U.S. 33, 41 (1915). But the right to earn a living is not at stake here. It is an equally basic axiom that there is no right to public employment. See Brown v. Russell, 166 Mass. 14, 25 (1896). Many years have passed since the decision of this court in McAuliffe v. Mayor and Bd. of Aldermen of New Bedford, 155 Mass. 216 (1892), but we believe Mr. Justice Holmes's observation at p. 220 of that opinion is still basically true: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." See Bell v. District Court of Holyoke, 314 Mass. 622 (1943) (right to employment as a fire fighter); Faxon v. School Comm. of Boston, 331 Mass. 531 (1954) (right to employment as a public school teacher). It is true of course that the State is not as free as a private employer in its hiring practices. It may not discharge an employee for
Moreover, unlike the cases discussed above, c. 226 does not require that any person be discharged from State employment or that State employment be foreclosed to any person. Rather it makes the status of certain applicants subordinate to others who possess the requisite length of residence. The director certifies to an appointing authority more names than there are vacancies. In some cases where
Therefore, the burden which this statutory scheme imposes on those who have recently exercised their right to travel comes down to this: they may be placed at a relative disadvantage to one-year residents in the competition for a job to which they have no vested right. We conclude that this burden cannot be regarded as such a drastic deprivation of the rights of citizenship or the means of maintaining life as to trigger the extremely vigorous scrutiny of legislation implicit in the compelling State interest test. See Fiorentino v. Probate Court, ante, 13, 29-30 (1974) (dissenting opinion of Reardon, J.).
It is still necessary to examine the challenged statute under the traditional standards of the Equal Protection Clause. Those standards are set out in summary form in Pinnick v. Cleary, 360 Mass. 1, 27-28 (1971), where it was noted that where a "legislative classification is attacked as a violation of equal protection ... if the legislative difference in treatment is reasonably related to a legitimate public purpose, it is permissible." There is a "subsidiary presumption of constitutionality" and "any reasonably conceivable set of facts" is sufficient to justify it. Ibid. "The equal protection clause... limits legislative discretion in delineating classifications only to the extent of forbidding `arbitrary or irrational' classifications ... or discrimination which is `invidious.' Williamson v. Lee Optical of Oklahoma, Inc. 348 U.S. 483, 489." Ibid.
It is apparent from the record in this case that the classification implicit in c. 226 is not "arbitrary or irrational" and that it bears a reasonable relation to the legitimate public interest of providing the best possible police protection for the cities and towns of the Commonwealth. At trial the judge heard testimony from James F. Corr, the chief of police of Lexington. Chief Corr made clear the benefits
The desirability of resident police officers has received frequent recognition from courts reviewing statutes requiring
We are content, however, to rely on the so called "rational basis" test. It is conceivable, moreover, that a third intermediate standard of equal protection review is
It is true that the statute attacked here may grant a preference to some applicants who lack the desired qualities while denying it to some who are amply qualified. But this does not negate the reasonableness of the classification. Pinnick v. Cleary, 360 Mass. 1, 29-30 (1971). It is impossible to draw legislative classifications to mathematical perfection, and the Fourteenth Amendment does not require such precision. Dandridge v. Williams, 397 U.S. 471, 485 (1970).
The defendants allege a separate constitutional defect in c. 226. It is charged that the statute creates an "irrebuttable presumption" and is thus offensive to the Due Process Clause of the Fourteenth Amendment. The relatively novel doctrine disfavoring irrebuttable presumptions is a product of a series of recent cases decided by the United States Supreme Court. Stanley v. Illinois, 405 U.S. 645 (1972). Vlandis v. Kline, 412 U.S. 441, 446 (1973). Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974). See Fiorentino v. Probate Court, ante, 13, 24-25 (1974). It is alleged that c. 226 creates an irrebuttable presumption that an applicant who does not fulfill the residence requirement is not as qualified for appointment as one who does. The citation of
Secondly, the Vlandis case made clear that with respect to irrebuttable presumptions drawn from the fact of duration of residence only those which are permanent in effect are constitutionally impermissible. 412 U.S. at 452-453, n. 9 (1973). In that case, failure to demonstrate the requisite period of residence at the time of registration resulted in a permanent ineligibility for reduced tuition at a State university. The court contrasted this with the one-year residence requirement for lower tuition in Starns v. Malkerson, 326 F.Supp. 234 (D. Minn. 1970), affd. 401 U.S. 985 (1971), in which the presumption could be reversed after the year had passed. As in the Starns case, the preference accorded to one-year residents here is not permanently denied to those who are new or nonresidents at the time of examination.
The final argument raised by the defendants relates to a possible inconsistency between c. 226 and the consent decree entered in the United States District Court in the case of Castro v. Beecher, 365 F.Supp. 655 (D. Mass. 1973). That decree was the product of litigation challenging the civil service examination for police in the Commonwealth. As a result of a decision in the United States Court of Appeals, Castro v. Beecher, 459 F.2d 725 (1st Cir.1972), the resulting consent decree as a remedial measure embodied
We express no opinion on the question whether such a conflict exists or what the proper result would be if it does. The effect of the consent decree was not raised in the Superior Court and it appears nowhere in the record. It cannot be raised for the first time before this court. Henchey v. Cox, 348 Mass. 742, 747 (1965). Lyon v. Bloomfield, 355 Mass. 738, 743 (1969). Green v. Board of Appeal of Norwood, 358 Mass. 253, 257 (1970). The wisdom of this rule of appellate procedure is clearly demonstrated by the nature of the contention sought to be raised here. Its proper determination requires a factual record of substantial dimension and consideration of difficult and delicate matters of Federal-State comity. The meager briefing and argument of the point and the absence of any record or prior findings make plain that this is not the proper occasion for such a decision.
We rule that St. 1972, c. 226, is constitutional.
"Be it enacted, etc., as follows:
"Section 48A of chapter 31 of the General laws, as most recently amended by chapter 16 of the acts of 1969, is hereby further amended by striking out the first sentence and inserting in place thereof the following two sentences: — No applicant for appointment to the police force of a city or town shall be required by rule, or otherwise, to be a resident of such city or town at the time of filing his application for examination for such appointment; provided, however, that notwithstanding the provisions of any general or special law to the contrary, any person who receives an appointment to the police force of a city or town shall within nine months after his appointment establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town. If any person has resided in a city or town for one year immediately prior to filing his application for examination and has the same standing as any person who has not so resided in such city or town, the director of civil service, when establishing the list of eligible applicants, shall place the name of the person so residing ahead of the name of the person not so residing, or upon written request of the appointing authority to the director, the director shall place the names of all persons who have resided in a city or town for one year immediately prior to the date of examination ahead of the name of any person not so residing, provided that the request is made prior to establishment of the eligible list. Approved May 2, 1972."