People ex rel. Kittenger v. Board of Civil Service Com'rs

This is an application for a writ of mandamus, directing commission of the city of Buffalo to place the name of the relator, Samuel Kittenger, upon the eligible list of the civil service of the city of Buffalo for a clerkship under Schedule B, and that the civil service commission certify his name to the proper authorities for appointment when a vacancy occurs. The facts of the case, as. presented, by the papers, are not in dispute. The relator is a citizen and a resident of the city of Buffalo. He is an honorably discharged soldier of the late war, having been in the service nearly four years. He made proper application to the civil service commission for examination, having-passed the medical examination as required by the rules of the

Beginning in 1883, many laws have been passed by the legislature bearing upon this subject, and many cases have come before the courts of this state, and it has been so uniformly held that honorably discharged soldiers are entitled to preference in appointment from the eligible list under these statutes that no discussion of the question seems necessary or profitable, but a simple statement of the law will be sufficient. The commissioners cannot arbitrarily strike the name of a qualified applicant for position from the eligible list. The statute has fixed his status, and their authority is limited by the statute to certifying his name to the appointing power. People v. Cobb (Sup.) 43 N. Y. Supp. 120 . Section 9 of article 5 of the constitution provides that:

“Appointments and promotions in the civil service of the state, and of the civil divisions thereof, including cities, and villages, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examination, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers from the army and navy of the United States in the late Civil War, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to the standing on any list from which such appointment or promotion may be made.”

Before the adoption of the new constitution, the legislature had, by chapter 354 of the Laws of 1883, and chapter 410 of the Laws of 1884, enacted a system of civil service laws for the state and municipalities which, in substance, contained the provision of the constitution above set forth, and the further provision that honorably discharged soldiers “shall not be disqualified from holding any position in the civil service on account of his age, nor by reason of any disability, providing such disability does not render him incompetent to perform the duties of the position applied for.”

Section 16 of article 1 of the constitution provides that:

“Such acts of the legislature of this state as are now in force shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning them.”

It was held by the court of appeals in People v. Roberts, 148 N. Y. 360 , 42 N. E. 1082 , that “it was the intention under this provision to put all of the new provisions of the constitution in operation through the instrumentality of such laws as were in force, so far as practicable, and that these laws remained in force as

“The foregoing manner of procedure * * * shall be followed in all cases not expressly provided for, except as far as the same shall be superseded by the provisions of the laws of the state of New York relating to the preference •of honorably discharged soldiers and sailors.”

It will not be claimed, I think, that the mayor had power, under the statutes, to nullify any provision of the act of the legislature giving preference to honorably discharged soldiers, if such a construction can be given to' the rule adopted by him; but I do not think the language of the rule warrants any such construction. The laws of the state give preference to honorably discharged soldiers and sailors, and the rule was evidently adopted with the laws of the state in view. The commissioners were, therefore, mistaken in the interpretation which they gave to the rules prepared and Adopted by the mayor of the city of Buffalo in 1896, and their act in refusing to certify the relator was contrary to them. The secretary of the civil service commission, in his affidavit, sets out the rule relating to the qualifications of applicants, and says that the relator was stricken from the eligible list of candidates “for the reason only that the said Kittenger was over the age of sixty years”; so that it is not necessary, in this view, to hold the rule void as being in violation of the laws of the state, but that the commissioners were mistaken in the interpretation which they placed upon them. It has been repeatedly held that honorably discharged soldiers and sailors are within the exception of the statute, if they are not in fact physically incapacitated by age or infirmity, and as to them no such limit can be fixed. People v. French, 52 Hun, 464 , 5 N. Y. Supp. 712 ; In re Sullivan, 55 Hun, 285 , 8 N. Y. Supp. 401 ; People v. Cobb, supra. These various acts relating to the civil service and the construction which the courts have placed upon them leave little to be said. That honorably discharged soldiers and sailors have the preference under the law, notwithstanding their age, if they are not incapacitated, is beyond legal controversy. The relief asked for by the relator must be granted. He is entitled to have his name restored to the eligible list of the civil service of the city of Buffalo, and, when a vacancy occurs in the class to which his examination entitles him, he should be certified in pref

Let a writ of mandamus to that effect issue to the civil service commission, with $10 costs to the relator.