
    STATE EX REL. MATT MOILAN v. JOHN G. BRANDT AND OTHERS.
    
    October 4, 1929.
    No. 27,332.
    
      E. J. Larson and Jenswold, Jenswold & Dahle, for appellants (respondents below).
    
      McMahon d McMahon, for respondent (relator below).
    
      
       Reported in 226 N. W. 841.
    
   Dibell, J.

Mandamus to compel the common council of Virginia to appoint the relator to the position of marketmaster. The court submitted to the jury two questions: (1) Whether the council made the investigation contemplated by the soldiers preference act; (2) whether, in arriving at its decision and refusing to appoint relator to the position, it acted with manifest arbitrariness.

The jury answered the first question in the negative and the second one in the affirmative. The common council and its members appealed from an order of the court denying their motion for a new trial.

The plaintiff made his application under the provisions of the soldiers preference act, G. S. 1923 (1 Mason, 1927) §§ 13684369. In State ex rel. Meehan v. Empie, 164 Minn. 14, 204 N. W. 572, this statute was under consideration and the position there involved Avas the one now involved. We adopted the rule of fitness for the position as the controlling one, rather than relative efficiency, and stated the test as follows [164 Minn. 16]:

“The statute fixes the standard of qualifications and fitness. It must be construed sensibly. It intends that the soldier applicant, to be entitled to preferential appointment, shall be capable of performing the duties of the position in a reasonably efficient manner. It does not intend that a soldier shall have a preference if he can perform the duties of the position merely after a fashion, though not with genuine efficiency.”

And further we said [164 Minn. 17]:

“The question of qualification or fitness is first and primarily for the appointing body. The trial court on mandamus, or this court on review, cannot substitute its OAvn vieiv of the fact. Only when the appointing power declines to investigate, declines to apply the laAV, or proceeds Avith manifest arbitrariness, or something equivalent thereto, can relief be had by mandamus. The court does not determine the question of fitness.”

Substantially every member of the council kneAv Moilan. Some of them Avere boys Avith him. Some of them had investigated an application made by him tAvo years before. Substantially all testified that they did not consider him fit for the position. We have considered the evidence Avith care. We do not find it necessary or profitable to revieAv it. The common council is the constitutionally created appointing poiver. The soldiers preference act does not intend otherAvise. It does not mean to make the jury or a court a body Avhich may revieAv the act of the council. It is only Avhen there is a failure on the part of the council to act or a manifestly arbitrary action on its part that a court may interfere.

There is some evidence, as remarked by the trial court in a care-„ ful revieAv of the record, casting suspicion on acts of individual members; but it is insufficient in our view to justify a finding that the intended investigation Avas not made or that the decision of the council as a body Avas manifestly arbitrary. The practical result of allowing the jury to avoid the holding of the council on evidence such as is before us is apparent. It transfers the appointing power from the council, where it is constitutionally vested, to the jury. We are of the view that the finding of the jury on the íavo questions cannot be sustained.

Order reversed.  