
    State v. Wallace.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    1. Office and Officer—Tenure—Discharged Soldiers.
    Laws IT. Y. 1887, c. 464, § 1, provides that any honorably discharged soldier shall be preferred for employment or appointment on public works or in the civil service. Defendant was indicted for refusing to employ such a person to labor on the streets, of which defendant had control. On the trial the evidence as to whether defendant knew that the prosecutor was such soldier was contradictory. The court charged that defendant was chargeable with knowledge of that fact, or with neglect in failing to place his refusal to employ the prosecutor on the ground that he did not know him to be such soldier, and that if he did not at the time refuse to employ prosecutor on that ground he could "not defend on that ground at the trial. Held error, as it was the duty of prosecutor to furnish satisfactory evidence of the fact entitling him to preference.
    2. Same—Construction of Statute.
    Though the statute contains a clause requiring of all oficiáis “a faithful compliance” with its terms, “in letter and in spirit, ” it does not change the rule of construction applicable generally to penal statutes, and it is error to charge that it should be liberally construed.
    3. Same—Employment of Teams.
    The statute requires the employment of men with their teams, when teams are necessary and being used, the same as of men without teams.
    Appeal from Cayuga county court.
    Bobert Wallace, superintendent of streets in the city of Auburn, was indicted under Laws N. Y. 1887, c. 464, for refusing to employ an honorably discharged Union soldier on the streets. He was convicted, and appeals. The enacting clauses of the statute are, viz.: “Section 1. In every public department, and upon all public works of the state of New York, and of the cities, towns, and villages thereof, and also in non-competitive examinations under the civil service laws, rules or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment. Age, loss of limb, or other physical impairment, which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. Section 2. All officials or other persons having power of appointment to or employment in the public service, as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and in spirit, and a failure there to be a misdemeanor. ”
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Wüliam B. Woodin, for appellant. A. P. Rich, Dist. Atty., for respondent.
   Barker, P. J.

The prosecutor, William Byan, is a resident of the city of Auburn, a laborer, and the owner of a team and wagon, and an honorably discharged Union soldier from the military service of the United States. The defendant, at the time stated in the indictment, was street superintendent in the said city, and under the charter thereof, and the ordinances passed by the common council of said city, he was authorized and empowered to employ laborers and teams to do work on the public streets, in grading and improving the same, as ordered and directed by the common council. Byan requested the defendant to give him, with his team, employment in repairing and improving the streets, and this application was ilatly refused. At that time the defendant was engaged in doing work on the streets, and employed other laborers, with teams, who were not discharged Union soldiers, to do the same, under his supervision. It is claimed by the people that such a refusal to employ Ryan and his team, in preference to those whom he did employ, was a breach of duty, and in violation of the provisions of chapter 464 of the laws of 1887.

The defendant contends that the prosecutor, in seeking employment on the streets, did not bring himself within the provisions of the act, and was not entitled to the preference and benefits conferred on the class of persons mentioned therein, for the reason that be did not limit his request to the employment of himself only, but included his wagon and team within his demand for employment. This act is to be construed by itself, as it bestows the benefits and privileges which the prosecutor demanded, and imposed upon the defendant the duty which it is alleged he has violated. The provisions of the civil service act (chapter 854, Laws 1888) afford us no aid in disposing of the questions presented on this appeal, as that law was intended to improve the public service, and make it more efficient, while the provisions of this act are beneficent in their character, and were intended to benefit a class of persons who may be in some respects inferior physically and mentally to other applicants for the same service, provided such impairment does not disqualify them from performing the labor and duty which may be required of them in the position to which they may be appointed. We are unable to find any other statute which aids us in ascertaining the legislative intention in enacting this law. The language used is general, and quite comprehensive, and evidently embraces other persons of the class mentioned than mere workmen or laborers. It is susceptible of construction, and we are inclined to think that it was the legislative intention that it should apply to all cases of appointment or employment of individuals on all the public works, in all the cities, towms, and villages in the state, who are not required under the civil service laws to submit to competitive examination as to their fitness and qualification to fill the position for which they apply. The* officials having the power of appointment or employment in the public service, as prescribed in the act, are charged with the faithful compliance with its terms, both in letter and in spirit, and we are of the opinion, and so hold, that the prosecutor was entitled to employment for himself and team, in preference to others who were not discharged Union soldiers. It is well known to everybody that in grading and improving the streets and highways a large portion of the work is done and performed by the use of teams, and when used in such service it is giving employment, within the meaning of the act, to the owner.

The defendant’s evidence tended to show that when he discharged the prosecutor, and refused to give him and his team further employment, he was not informed, and did not know as a matter of fact, that he was an honorably discharged Union soldier, and the question was raised on the trial whether, if he was ignorant of that fact, he was guilty of a misdemeanor. The people’s evidence, if it had not been disputed or contradicted by other evidence, was amply sufficient to show that the defendant knew that the claim of the prosecutor that he was a discharged Union soldier was true. The court submitted the question to the j ury as one of fact for them to determine, with instructions which we think were erroneous. The learned county judge instructed the jury, in substance, that the defendant was chargeable with1 the knowledge that the complainant was a Union soldier, or chargeable with neglect in making it an objection for not employing him that he was not an honorably discharged Union soldier, if they found as a matter of fact that he-did not make that ground of objection When he refused to employ him. “That, as a rule of law, whenever a party makes a claim of right to anything, or, at least, in some instances where the party makes a claim of right to anything, and the other party does not object to his claim on the ground that he has no such right, he is precluded or estopped from raising such objections afterwards.” And he then added that if Ryan went to the defendant in good faith, and being a Union soldier, and made claim for work on that ground, and the defendant did not assume or pretend to dismiss him on the ground that he did not know that he was a discharged Union soldier, and refuse to give him work on that ground, he cannot now come here and say, “He furnished me no evidence that he was a Union soldier;” and he also added to this part of his charge that, if the jury found that the defendant did not make it an objection to the employment of the prosecutor that he did not know that he was a discharged Union soldier, he cannot now claim that he had no evidence that he was such in fact.

When a person applies to a public officer for appointment and employment under the provisions of the act, it is incumbent upon him to furnish satisfactory evidence that he belongs to the class of persons intended to be benefited by the law, and an officer cannot be charged with violating its provisions, and guilty of a misdemeanor in refusing employment to an applicant, by declining to act upon the mere assertion of the applicant, if he does not know as a matter of fact, from other source, that the statement of the applicant is true. As to the kind of evidence and information on the subject which should be regarded as sufficient for the guide and action of the officer in disposing of the application, we do not intend, in disposing of this appeal, to lay down any rule, as each case should be disposed of upon the evidence which the applicant is able to present, and the actual information which the officer may possess on tile subject. The rule adopted on the trial, that if the defendant did not place his refusal to employ the prosecutor on the ground that he did not know that he was an honorably discharged Union soldier he was precluded from taking the position that the applicant did not furnish him with satisfactory evidence on the subject, is manifestly erroneous, and for that reason alone a new trial should be granted.

The jury were also instructed, in substance, that the statute under which the indictment was framed was to be construed liberally, and not strictly, as it should be if it did not contain the clause charging the officer vested with the power of employment with a faithful compliance with its terms, both in letter and in spirit. We are also of the opinion that this was error, and may have misled the jury, and induced them to render a verdict convicting the defendant of the offense charged. The provision of the statute referred to was intended as a guide and as an instruction to the officer who possessed the power of appointment, requiring him, in disposing of applications presented to him, to administer the law in its spirit as well as its letter, and has no application whatever in a criminal trial, and was not intended to change any rule of evidence or of construction in cases of criminal procedure founded upon the provisions of the act. Judgment reversed, and the verdict set aside, and a new trial granted, and the proceedings remitted to the Cayuga county court of sessions, with instructions to proceed. All concur.  