
    STATE EX REL. BRYAN McOSKER v. CITY COUNCIL OF MINNEAPOLIS AND OTHERS.
    
    May 7, 1926.
    No. 25,105.
    Soldiers Preference Law not applicable to head of department.
    G. S. 1923, §§ 4368 and 4369, being the Soldiers Preference Law, does not apply to an officer who is the head of a department.
    Mandamus, 38 C. J. p. 703 n. 4.
    Municipal Corporations, 28 Cyc. p. 400 n. 28 New; p. 404 n. 67.
    Alternative writ of mandamus issued by tbe district court for Hennepin county to tbe common council of Minneapolis commanding it to revoke tbe appointment of one Noyes as city clerk and to investigate tbe qualifications of tbe relator for tbe position in accordance with tbe provisions of tbe Soldiers Preference Act. Tbe respondents demurred to tbe alternative writ. Tbeir demurrer was sustained, Guilford, J. Tbe relator appealed.
    Affirmed.
    
      Shaio, Safford, Putnam & Shaw and Harold N. Rogers, for appellant.
    
      Neil M. Cronin, City Attorney, Thomas B. Kilbride, Assistant City Attorney, and Fowler, Carlson, Furber & Johnson, for respondents.
    
      
      Reported in 208 N. W. 1005.
    
   Wilson, C. J.

Mandamus to compel tbe city council to investigate and act under G. S. 1923, §§ 4368, 4369, known as tbe Soldiers Preference Law.

An applicant wbo comes witbin tbe statute is entitled to tbe use of tbe writ of mandamus for tbe purposes sought. State ex rel. v. Empie, 164 Minn. 14, 204 N. W. 572.

Tbe city clerk is an officer under tbe language of tbe city charter, e. 3, § 3. He is elected by ballot requiring tbe affirmative vote of a majority of all members of tbe council. Chapter 2, § 2. He may appoint an assistant city clerk. Chapter 3, § 4. Tbe charter defines the clerk’s duties. He is not subject to tbe direction of tbe council. His salary is an incident to bis office. He takes an oatb and bolds bis office for two years. He has charge of bis office and all employes therein. He is tbe bead of bis department.

Tbe title to tbe act as stated in L. 1907, p. 355, c. 263, is:

“An act regulating appointments, employment and removals in public departments and upon public works in tbe State of Minnesota, and tbe counties, cities and towns thereof, relating to state, judicial, county, township, city and town officers.”

The preference is in “appointments, employment and promotion over” other applicants. Tbe statute provides: “Nothing in this act shall be construed to apply to tbe position of private secretary or deputy of any official or department, or to any person bolding a strictly confidential relation to tbe appointing officer.” It is plain that tbe position of tbe assistant clerk would not come within tbe operation of tbe act. If not, why may we say tbe legislature intended to have tbe law applicable to tbe superior position — tbe bead of tbe department? The statute says that no person bolding a “position” shall be removed. Tbe exclusion last quoted herein uses tbe term “position” which is not an office. Nor does a public officer occupy a place of employment. Tbe use of tbe word “promotion” could hardly be applicable to the office of city clerk. If the act applies. to the office of city clerk it would also apply to the Department of Public Welfare, City Charter, c. 14, and to tbe City Planning Commission, c. 13, and tbe Civil Service Commission, c. 19. We do not think the legislature intended to restrict the appointment of these officials to ex-service men who apply for tbe appointments. Such board must be appointed before there is a department. Tbe word “officers” as expressed in tbe title of our preference law must be construed as meaning that such officers in tbe appointment of their subordinates should be governed by tbe provisions of tbe act and not that tbe officers themselves are to be selected thereunder. Tbe original New York Act used tbe word “employment” in tbe title, not tbe word “appointments,” but this distinction is of little significance. Tbe New York law was subsequently amended so that it is now substantially a duplicate of our law and in its present form has been construed as indicated.

We are of the opinion that a reasonable construction of this law requires us to say, as we do, that it does not apply to the officer who is head of a department. The preference is to be given in the department with certain exceptions. Such is the general understanding of it. The language of the title and of the law falls short of suggesting that public officers vested with discretion in the performance of their duties, not subject to direction from superior authority but on the contrary possessing the necessary authority to appoint clerks and subordinates, were contemplated as coming withjn the act.

A law of similar import in the state of New York, which uses the word “position” and refers to employment, has been construed as not applicable to the heads of departments but only to all subordinates in such public service and relating to such employes as are not vested with discretion. People v. Board of Trustees, 85 App. Div. 141, 54 N. Y. Supp. 1083; People v. Morton, 148 N. Y. 156, 42 N. E. 538; People v. Van Wyck, 157 N. Y. 495, 52 N. E. 559; In the Matter of Christey v. Cochrane, 211 N. Y. 333, 105 N. E. 419. Appellant relies upon the somewhat contrary authority of Shaw v. City of Marshalltown, 131 Iowa, 128, 104 N. W. 1121, 10 L. R. A. (N. S.) 825, 9 Ann. Cas. 1039, but that case involved only the constitutionality of the Iowa act and the propriety of mandamus as a remedy and insofar as it is an inferential authority in support of appellant it is not persuasive.

Affirmed.  