114 N.E. 800 | NY | 1916
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *453
The sole question to be determined on this appeal is the power of the civil service commission to deny to the relator the right to take the examination by reason of the fact that he is upwards of forty-five years of age. That relator was in the competitive class and held a position in the civil service is not questioned. His right to seek promotion is dependent upon a construction of section
"§ 21. Preferences allowed honorably discharged soldiers, sailors and marines. In every public department and upon all public works of the state of New York and of the cities, counties, towns and villages thereof, honorably discharged soldiers, sailors and marines from the army and navy of the United States in the late civil war who are citizens and residents of this state, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made to all competitive and non-competitive positions provided their qualifications and fitness shall have been ascertained as provided in this chapter and the rules and regulations in pursuance thereof; and a person thus preferred shall not *455 be disqualified from holding any position in the civil service 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. * * *"
On behalf of the commission, respondent, it is urged that the section of the law quoted does not confer upon a veteran the right to compete in an examination regardless of age; that veterans were not entitled to a preference until after they had been examined and their names placed on the list, and any attempt to prefer them before their names were placed on the list would be a violation of section 9, article 5 of the Constitution, and in support of this argument reliance is placed upon a decision of this court. (Matter of Keymer,
Section
In People ex rel. Moriarity v. Creelman (
"Thus we come to the remaining and more important question whether general considerations, as distinguished from a specific reason like that discussed, forbade the appellants to fix the age limit in question. The principle of the rule which must govern the decision of this question is found in People ex rel. Schau
v. McWilliams (
"* * * Other things being equal it at least might be fairly argued that a man of twenty-five years of age would be apt to have a more mature and reliable judgment than one of twenty-one years, and, therefore, would be better fitted for appointment to one of these very responsible positions. This being so it follows that the commission would be justified, as against the present proceeding, in formulating the requirement which is complained of. * * *"
The Civil Service Law, section
That language appeared in the statute of 1895 (Chap. 344) enacted immediately following the adoption of the *458 Constitution and has been preserved in several statutes down to the time of the consolidation, when it was continued in the present Civil Service Law. In a consideration of the same we should bear in mind the beneficent purpose in view at the time when the legislature first enacted the law, and that it has been continued upon the statutes down to the present day. The statute requires that a veteran must as the result of an examination disclose his qualifications and fitness. A failure on his part to meet that requirement will justify his exclusion from any list and defeat his ambition to secure an appointment to any position where competitive examination is required. The relator has been denied the opportunity to establish his qualifications and fitness for the position, and the argument is made that he is without rights under the law as a veteran because his name is not upon the list. The commission having refused him permission to take an examination and if successful to procure his name to be placed on the list cannot now assert in defense of his claim to a right of examination that his name is not upon the list, a condition which may be due to the act of the commission. The denial of the right of examination tended to defeat the purpose of the provision of the statute prohibiting a disqualification by reason of age or physical disability unless the veteran was incompetent to perform the duties of the position applied for. The record does not disclose the age or physical condition of relator. He has been erroneously denied the right to be examined as to fitness or qualifications and the orders of the Appellate Division and Special Term should be reversed, with costs to appellant in all courts and the writ applied for granted.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, CARDOZO and POUND, JJ., concur.
Orders reversed, etc. *459