
    The People ex rel., George Washburn, App’lt, v. Stephen B. French et al., Resp’ts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed May 24, 1889.)
    
    1. Civil service—Laws 1886, chap. 29, amending Laws 1884, chap. 410, APPLY TO VETERANS ACTUALLY IN OFFICE.
    The provisions of the laws of 1886, chap. 29, amending Laws of 1884, chap. 410, hy which no veteran of the late war shall be disqualified from holding any position in the civil service of the state of New York by reason of liis age, or by reason of any physical disability provided that such age or disability does not render him incompetent to perform the duties of the position, apply to those veterans actually in office, as well as those who apply for appointment to office.
    2. Same—New York (city of).
    The rule applies to members of the police force of the city of New York.
    Certiorari to review proceedings of the board of police commissioners, retiring the relator from service and placing him on the pension roll.
    
      Louis J. Or ant, for app’lt; David J. Dean, for resp’ts.
   Van Brunt, P. J.

The relator was appointed a patrolman in 1856. In 1862 he entered the army and served during the war to its close, in 1865, when he was honorably discharged. Thereafter, in 1865, he was again appointed patrolman, and continued to be a member of the force until June, 1881, in the meantime having attained the rank of captain. On the last mentioned day he was dismissed and placed on the roll of the police pension fund because he had then reached the age of sixty years, the authority to make such dismissal being claimed from the provisions óf section 2 of chap. 364, of the Laws of 1885.

The question now brought up for review is whether the commissioners had the authority to discharge the relator, he being a veteran soldier and honorably discharged from the service of the United States, because he had reached the age of sixty years. Section 2 of chapter 364 of the Laws of 1885 provides that any member of the police force who shall have reached the age of sixty years, shall by resolution, adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund.

It is clear that under this legislation the commisssioners had not only the power, but were required to make the removal upon the arrival of the relator at the age of sixty years.

It is, however, urged that the relator was relieved from the provisions of the act of 1885 above quoted, because of chapter 26 of the Laws of 1886, which provided that chapter 410 of the Laws of 1884, an act to regulate and improve the civil service of the state of New York, should be amended by requiring the civil service commissioners to report names for appointment of veterans of the war, and that such persons shall be preferred for appointment for positions in the civil service over all other persons, though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained as provided in the act. And it was further provided that the persons thus preferred should not be disqualified from holding any position on account of his age, or by reason of any physical disability, provided such age or disability does ■ not render him incompetent to perform the duties of the position applied for.

In answer to this claim, it is urged upon the part of the respondent that the provisions of the act of 1886 applied only to applicants to office and have no bearing upon the qualifi-' cations o'f those actually in office. .

It is a familiar rule in the construction of statutory and constitutional law that the intention of the law making power shall be ascertained from the language of the act, from the nature of the subject matter as to which the legislation is enacted, and the objects to be attained by such legislation, and that the mere language of the act cannot b© permitted to override such intention where it is clearly to be gathered from the act under construction and the surrounding circumstances.

Sow it is apparent, from a reading of the act of 1886, that it was the intention to relieve veterans of the late war from the disabilities which other persons who had not the same claim to recognition were resting under in respect to holding-office, and therefore it provided that such person should not be disqualified from holding- any position in the civil service of the state on account of his age, or by reason of any physical disability, provided such disability did not render him incompetent to perform the duties of his office.

_ It certainly cannot be presumed to have been the intention of the legislature to place an applicant for an office in a better position than a veteran who had already been appointed. In other words, that a veteran whose qualifications were not sufficient of themselves to require his appointment under the civil service act, because there were others who might be better qualified, should be preferred over a veteran who had been appointed because his qualifications alone compelled his appointment. It cannot be presumed that the legislature intended to work such an injustice, and if a construction can be adopted which gives force to the whole act, and to an intention which does not work such an injustice, such a construction must necessarily be adopted.

It seems to us clear that the intention was to relieve veterans from the disqualification of age, and that in making use of the words, “a person thus preferred,” in the act of 1886, they undoubtedly intended that such person should not be disqualified from holding any position in the civil service on account of his age, not merely after he had actually been thus preferred for the purpose of appointment, but that he would, under the terms of the act, be entitled to that preference, if he could claim such preference, in case he was an applicant for appointment.

If this is not the true construction, then a member of the police force, who is removed on account of age,-would have a right to apply, under the act, for reappointment, and the police commissioners would be required to reappoint him to the position from which he had been removed on account of age. This, of course, would refer but to patrolmen, and would not necessarily refer to the higher ranks of the service, which are required to be drawn from the lower positions of the force.

Such an anomalous condition of affairs was never intended by the legislature. It is clear that it was intended to relieve veterans from the disqualification of age, and, as a consequence, the power of the commissioners to remove a veteran because he has reached the age of sixty, was thereby repealed, and the relator having been removed for this cause, and being a veteran, is entitled to be reinstated.

The proceedings should be reversed and the relator reinstated, with costs.

Cullen, J., concurs.  