
    PEOPLE ex rel. CHIN v. POILLON.
    
      N. Y. Supreme Court, Second District ; Special Term,
    
    
      August, 1885.
    Mandamus to Civil Service Commissioners.—Civil Service Act; L. 1884, c. 410, § 4; preference of discharged soldiers AND SAILORS.
    Under the Civil Service Act—(L. 1884, c. 410, § 6),—which provides that discharged soldiers and sailors shall be preferred for appointment to positions in the civil service over others of equal standing, —discharged soldiers and sailors have not, because found qualified, an absolute right of preference over all others, but only a preference to others having an equal or lower standing.
    Application for mandamus.
    William J. Chin and another applied for the issue of a writ of mandamus to Richard H. Poillon and others, fire commissioners, to enforce the claim made by the relators, by reason of being honorably discharged from military service, to appointment under the Civil Service Act, in preference to other persons examined.
    
      William J. Gaynor, for the relators.
    
      E, M. Shepherd, for the respondent.
   Cullen, J.

Section 4, chapter 410, Laws of 1884, provides, that persons who served during the late war, in the army or navy, and have been honorably discharged therefrom, shall be preferred for- appointment to positions in the civil service, of the State and cities, over other persons of equal standing, as ascertained under that act, and the act thereby amended, chapter 354, Laws of 1883. By the last named act, its is provided, that original appointments to positions in the civil service of the State, and of cities with a population over 50,000, shall be made by selection from applicants graded highest, as the result of competitive examination, and that promotions from lower grades to higher, shall be made on the basis of merit and competition. The standing of applicants, must, therefore, be determined by their respective merits and the results of the competitive examinations. It is equal competitive standing that the statute has in view. This seems to me so plain, as to forbid elaboration. From the contention of the relators, if conceded, it would result that all appointments and promotions contemplated by the statute, as the subject of competition, should be filled by discharged soldiers and sailors, if there were such applicants who might be found qualified, and only in default of such applicants should such appointments be open for other persons to competition. However just or proper such a rule would be, plainly the legislature has not enacted it.

The construction of the statute here adopted, does not render the preference given the discharged soldiers or sailors illusory. It will still be substantial. Both the statute and the rules established under it contemplated the exercise of discretion by the appointing power among several of the applicants having the highest grading. The one with the highest standing may be passed by, and one with a lower standing appointed. But, if a discharged soldier or sailor is presented for appointment, he must be appointed in preference to others having equal or lower standing. In other words, if his standing is equal to, or better than, that of his competitors, he has the absolute right to the appointment, which is not the case with other persons.

Application for mandamus denied.  