The fact that a person has held a posi-
tion provisionally does not mean that, in later competition with others,
he is to be appointed because of the proof of competency supposed to be
implicit in the fact of former temporary service. 64 A temporary appointee
who takes an examination for a permanent appointment does not im-
mediately obtain permanent appointment, but receives a probationary
appointment, That is, a temporary appointment does not render un-
necessary the requirement that an appointee serve the regular proba-
tionary period before obtaining permanent status. 65
A change in a provision relating to the term of temporary appoint-
ments may be made to take effect so as to shorten the tenure of those
already appointed for the longer period. 66 The temporary appointee has
no recourse because no legal right of his has been violated.
The provision of the Colorado constitution relating to removals does
not apply to temporary appointments. The court said that this provision
protected only those who had been appointed on the basis of merit as
shown in an examination, and that temporary appointees did not consti-
tute such a class. 67
An interesting example of a determination to keep temporary ap-
pointees in that status, irrespective of an apparent evasion of the rule
governing such appointments, is to be found in State v. Golden. 68 A six-
year term of service was treated by the court as still leaving the appoint-
ment temporary, so that the holder received no benefit of the removal
provisions of the act. That no vacancy existed, that he had been paid as a
temporary appointee, and that he had been employed as one, seemed to
combine to influence the court to adhere to the rule of temporary ap-
In order to cope with the abuse of temporary appointments, some
charters and statutes forbid the renewal of a temporary appointment.
It is more usual, perhaps, for the laws to permit renewals, but to require
that they be consented to by the civil service commission before being
considered valid. When this is the situation, it is not necessary that the
commission take formal action to approve the renewal, nor is it necessary
that the minutes of that body show such formal action. A notation on the
employee's roster card may be sufficient, unless, of course, it can be shown
that the notation of renewal was made without the proper authority. 69
A term of temporary service that exceeds the legal term provided for
such service, if in good faith on all sides, may be compensated for, ac-
cording to one New York case. 70 A curious construction of a statute on
84 Matter of Friedman v. Delaney, 147 Misc. 154, 263 N. Y. S. 502 (1933), affirmed,
241 A. D. 711, 269 N. Y. S. 995.
85 Darling v. Maguire, 70 Misc. 597, 129 N. Y. S. 385 (1911).
60 Deering v. New York, 107 N. Y. S. 934 (1907).
67 Wilson v. People ex rel., 71 Colo. 456, 208 Pac. 479 (1922).
68 State ex rel. Curran v. Golden, 116 Conn. 302, 164 All. 640 (1933).
68 Nilsson v. State Personnel Board, supra, note 53.
70 Gallagher v. New York, 115 A. D. 662, 101 N. Y. S. 229 (1906).
ii8 CIVIL SERVICE LAW
temporary appointments is to be found in Schroeder v. State, 71 in which
a provision "but no such temporary employment shall continue after the
establishment of a suitable eligible list" was said to mean that a tempo-
rary appointee was entitled to remain in his position until a new eligible
list had been prepared. This means that by delaying the preparation of
an eligible list, an appointment of this type could exceed the purposes
for which it was designed.
At times it is difficult to distinguish a temporary appointment from a
transfer or a promotion, for instance, when a person who is already in
the service is given a position temporarily. Of course, if a transfer has
been effected instead of a true temporary appointment, he retains his
status in the service, assuming that the new position itself is within the
classified service. 72
A requirement that temporary appointees can be removed only after
notice to the commission is not for the benefit of the appointee, but for
that of the civil service commission, and therefore the requirement may
be waived by it. 78
II. VETERANS' PREFERENCE
Veterans' preference arises wholly from statute or express constitu-
tional provision. There is no such preference in the absence of express
command to give it and no such preference at common law. It is impor-
tant in each instance to study the exact phraseology of the statute grant-
ing the preference, because there is no uniformity either as to the classes
of veterans accorded the preference or as to the positions or offices to
which it attaches. There is not even a general principle as to where in
the process of selection the preference shall come into play. It may be a
preference in examination, in position on the eligible list, in certification,
in appointment, in promotion, in transfer, in layoff, in reduction of force,
or in suspension and removal.
In general, a veteran is entitled to that which the statutes give him,
but no more. A statute that provided for preference in appointment was
held not to carry with it a preference in layoff. 74 Although contrary to the
general theory of the law governing preference, there is some authority
that preference in appointment and employment carries with it prefer-
ence in layoff as well. 75 The Michigan court has gone so far as to permit
a civil service rule giving preference to veterans not only in appointment,
71 Schroeder v. State ex rel., 32 Oh. App. 105, 167 N. E. 484 (1929). Keefer et al. v.
State ex rel., 3 Oh. App. 413 (1914).
72 People ex rel. Naylor v. Cohen, 273 111. App. 362 (1935).
73 Civil Service Commission v. Cummings, 83 Colo. 379, 265 Pac. 687 (1928).
74 People v. Collins, 351 111. 551, 184 N. E. 641 (1933).
75 State ex rel. Beebe v. Seattle, 148 Wash. 565, 269 Pac. 850 (1928).
VETERANS 1 PREFERENCE 119
but also in layoff, to stand in the face of a statute which extended prefer-
ence to veterans in appointment. 76 The court said that the veterans' act
should be read with the civil service act and rules in an attempt to make
them harmonize, and that the harmony seemed to arise from extending
the preference as far as possible.
The law of veterans' preference is not peculiar to civil service law.
A preference statute could be phrased so as to relate to the civil service
and to nothing else, but it is more likely to be phrased so as to apply to
positions and offices both inside and outside the civil service. Statutes
giving preference to soldiers and sailors, whether of particular wars or of
wars in general, are most commonly intended to relate to offices and em-
ployments generally, subject to such exceptions as may be explicitly or
implicitly contained therein. Preference statutes are really a part of the
general law of public officers and employees, and relate to civil service
only because it is under that law. In this discussion only cases connected
with civil service laws will be considered, although some of them will
inevitably bear also upon the more general law of offices and employ-
The veterans' preference laws present constitutional problems under
two different types of constitutional provisions. In the first place, a few
state constitutions have provisions that deal expressly with civil service,
and in that connection mention veterans' preference. This is true of the
New York constitution. In the second place, provisions of state constitu-
tions which do not relate specifically to civil service or to veterans' prefer-
ence may contain principles and rules sometimes alleged to affect validity
of a preference statute. Such, for example, is a provision forbidding a
legislature to enact laws denying to any person the equal protection of
When a constitutional provision on the civil service is added in the
form of an amendment or as part of a new constitution, and provision is
made in it for veterans' preference, it may have the effect of repealing
some earlier laws and reviving others, the exact effect depending upon
the phraseology of the constitution and of the laws themselves. It is not
necessary that the provision be self-executing to accomplish this. 17
When the class to be preferred is described by the constitution in
broad terms, the statutes may not validly single out one group in the
broad class for special preference. For example, the veterans of a par-
ticular war may not be given greater preference than veterans of other
wars if the statute provides preference for all. 78 The New York courts
T6 Swantush v. Detroit, 257 Mich. 389, 241 N. W. 265 (1932).
"Matter of Sweeley, 12 Misc. 174, 33 N. Y. S. 369 (1895).
78 Matter of Keymer, 148 N. Y. 219, 42 N. E. 667 (1896).
120 CIVIL SERVICE LAW
have held that the legislature may not require that "standing highest
on the eligible list" shall where a veteran is concerned mean "standing
highest on the eligible list among the veterans." Nor does preference to
veterans waive the requirement of a probationary period. 79 The New
York constitutional provision granting preference may not be circum-
vented and the veterans deprived of their preference by narrowing the
preference to positions that pay less than four dollars per day. A statute
which extends the preference to a class of veterans broader than that
specified in the constitution is invalid. 80 To declare that persons seeking
positions of that class cannot be examined practicably is not conclusive,
and the courts will use their own judgment as to whether there is any
relationship between four dollars and the practicability of examination. 81
The Ohio constitution provides that appointment is to be made on the
basis of merit and fitness. Under this provision it has been held that even
though a veteran stands first among the three certified as highest on the
list, the appointing officer may not be compelled to appoint him, nor
could the statute so provide. 82 The court made the following statement
in the course of its opinion. "We hold that the director of public service
was not bound absolutely by the fact that the soldier had the highest
rating on the eligible list. In reality, the statute did not require the fact
as to whether any of the three certified was or was not a soldier to be
made known to the appointing officer. The latter was bound to consider
the rating on the eligible list, for what it was worth, but was also bound
to go further and appoint the applicant who answered the highest stand-
ards of merit and fitness with a view to the position to be filled. This
course involved an exercise of discretion on the part of the director of
public service; there was no abuse of discretion shown . . ."
A Massachusetts statute provided that "the names of veterans who
pass examinations for appointment to any position classified under the
civil service shall be placed upon the eligible lists in the order of their
respective standing above the names of all other applicants . . ." This
statute was held to contravene neither the Fourteenth Amendment to the
constitution of the United States nor the bill of rights of the Massachu-
setts constitution : 83 the equal protection of the laws clause was not vio-
lated by a provision which required preference in appointment to be
given to soldiers and sailors; likewise the requirement was not violative
79 Matter of Balcom, 28 Misc. i, 58 N. Y. S. 1097 ( J 899). See People ex rel. Qua v.
Gaffney, 142 A. D. 122, 126 N. Y. S. 1027 (1911), affirmed, 201 N. Y. 535, 94 N. E. 1098,
that if a veteran is among the first three on the eligible list he is entitled to appointment
80 Barthelmess v. Cukor, 231 N. Y. 435, 132 N. E. 140 (1921).
81 Matter of Keymer, supra, note 78.
82 Seward v. State, 129 Oh. St. 296, 195 N. E. 241 (1935).
88 Mayor v. Commissioners of Civil Service, 269 Mass. 410, 169 N. E. 502 (1929).
VETERANS' PREFERENCE 121
of the constitutional provision forbidding the imposition of tests other
than those specified in the constitution as prerequisites for public office or
In general, the only real limitation upon veterans' preference legisla-
tion arises from the requirement that preference be based upon some-
thing that bears a real relationship to fitness for the public service. Past
military service may bear such a relationship to fitness, and preference
may be based upon it. The preference must be of a reasonable nature,
however; it has been suggested that preference entirely without relation
to fitness and qualification would be unconstitutional. 85 Thus the state
cases infer that the federal practice of giving an outright grant of ten
points to the veterans in computing their grades might be invalid if the
added points raised a failing to a passing grade. 88
The court will construe a preference statute so as to require a test of
fitness if that is possible. For example, it has been held that some test is
implied in language which recites that preference shall be given to des-
ignated classes of veterans who "possess other requisite qualifications,
which shall be at least equal to those of other applicants." 8T In Ohio it
was decided that to give a bonus of twenty points to a veteran who passed
the competitive examination was not an arbitrary and unreasonable ap-
praisal of the value of military experience as a qualification for civil
service. The court emphasized that the bonus was given only to those
who had received a passing grade. The implication of this is that such
a bonus would not be valid if it were given to those who had not passed
the examination, and who would receive a passing grade only by count-
ing in the bonus. 88
The statute may not constitutionally impose upon the certifying and
appointing officers the duty to certify and to appoint a veteran merely
because he is a veteran, irrespective of his fitness. The requirement that
any three persons may attest to his fitness is not a substitute for a require-
ment of fitness itself. 89 A lower passing grade may not be required of
veterans than of nonveterans. 90
The obligation is on the person who claims the benefit of veterans'
84 In re Wortman, 22 Abb. N. C. 137, 2 N. Y. S. 324 (1888).
^Opinion of Justices, 166 Mass. 589, 44 N. E. 625 (1896).
80 State ex rel. Meehan v. Empie, 164 Minn. 14, 204 N. W. 572 (1925); note 16 A. L. R.
87 Swantush v. Detroit, supra, note 76.
88 State ex rel. King v. Emmons, 47 Oh. App. 348, 191 N. E. 880 (1934), affirmed,
128 Oh. St. 216, 190 N. E. 468.
89 Brown v. Russell, 166 Mass. 14, 43 N. E. 1005 (1896).
80 Cook v. Mason, 103 Cal. App. 6, 283 Pac. 891 (1929). On federal question, see Gia-
natasio v. Kaplan, 257 N. Y. 531, 178 N. E. 782 (1931), appeal dismissed, 284 U. S. 595,
52 Sup. Ct. Rep. 203 (1932).
122 CIVIL SERVICE LAW
preference to show that the position to which he asks to be appointed is
within the class of positions to which the preference applies. 91 Thus, for
example, a veteran's claim will be lost if he asserts the right of preference
to a confidential position or to that of a deputy when the preference is
for a position of "deputy superintendent," The veteran must also show
that his name is on the eligible list if he claims preference. 92
A New York law recited that "In every public department and upon
all public works of the state of New York and of the cities . . . any hon-
orably discharged soldier . . of the United States disabled in the actual
performance of duty in any war, to an extent recognized by the United
States Veterans' Bureau, who are citizens and residents of this state and
were at the time of their entrance into the military or naval service of the
United States, and whose disability exists at the time of his or her appli-
cation for such appointment or promotion, shall be entitled to preference
in appointment and promotion without regard to their standing on any
list . . ." Applying the doctrine that all doubts in the grant of a special
privilege should be strictly construed against those who claim it, the
court held that under this statute it was necessary to prove the existence
of a disability to the satisfaction of the state authorities in order to obtain
the preference that it provided for, and that the u venison of such dis-
ability by the United States Veterans' Bureau was in the nature of an
additional requirement. 93
Even under the most loosely drawn of veterans' preference statutes
(and there are many of them) it is necessary for the veteran to apply for
the position and otherwise to proceed through the normal channels estab-
lished for the selection of persons for the service. 94 It is necessary to notify
the proper officer that the claimant is entitled to the preference. If, in an
application for mandamus to compel his appointment, it appears that the
claimant has not given the proper notification of claim, the application
will be denied. 95 Notice of this kind need not be formal. It is enough
that the appointing officer be apprised of the claim of preference. This
rule applies generally to claimants to preference; there are, of course,
other groups, though not numerous, to whom preference may be given. 90
In some statutes the preference is given to "honorably discharged"
soldiers and sailors. The tests used to determine when a soldier has been
discharged honorably are the same as are generally applied in the law
relating to military affairs. Under a statute containing such a phrase it is
91 Matter of Ostrander, 12 Misc. 476, 34 N. Y. S. 295 (1895),
^Malloy v. Mayor, 12 N. E. (2d) 197 (Mass. 1937).
98 Matter of Morgan v. Ford, 143 Misc. 887, 257 N. Y. S. 684 (1932).
w Opinion of Justices, 145 Mass. 587, 13 N. E. 15 (1888).
96 In re Wortman, supra, note 84.
99 People ex rel. Zieger v. Whitehead, 94 Misc. 360, 157 N. Y. S. 563 (1916).
VETERANS' PREFERENCE 123
possible that a person may be entitled to preference even though he never
actually served in the military branch at all. It may be sufficient that he
entered the service, was detained in the preliminary stages, and was
finally discharged without having served in the military force. 97
Giving the preference to those who "serve" or have been "in the serv-
ice" may not include one who was drafted into the service but who was
discharged before he served because of disability. 98 Preference to those
who "served in time of war" does not include men who joined the army
after the signing of the armistice but before the peace treaty was signed."
Extending the preference to "soldier, sailor or marine" does not include
a field clerk in the army. 100 It has been held that a provision which gave
veterans the preference in employment supported a veteran's claim for
preference for himself and his team on a street improvement job in which
teams were required. 101
In one New York statute preference was given in "employment upon
all public works of the state of New York, and of the cities, towns, and
villages thereof." The statute also provided that the veterans must have
"business capacity necessary to discharge the duties of the position in-
volved." It was held that the preference extended to positions not in-
volving business capacity, and that laborers were also covered. 102 Some
cases on veterans' preference illustrate the constant struggle that goes on
between veterans, Ic^Mamrcs administrators, and courts in trying to
keep veterans' preference claims within tolerable bounds. In one Minne-
sota case the court was confronted with a statute which practically or-
dered the preference to be granted notwithstanding any provision in any
other existing law or in any other charter relating thereto, and the pref-
erence was sustained as constitutional and was granted. 103
If it is necessary for the veteran to get on the eligible list before he
is entitled to preference, then he must comply with such requirements
for a place on the list as are applicable to him before he can successfully
assert his claim to preference. 104
A veteran who is entitled to have his name placed at the head of an
eligible list by virtue of a statutory preference may not stand by for a
year, during which a list is posted, without asserting his claim to prefer-
ence. It is too late for him to make his claim after a year or two, and the
67 Hurley v. Crawley, 50 F. (id) 1010 (1931).
88 Dunn v. Commissioner of Civil Service, 281 Mass. 376, 183 N. E. 889 (1933).
"Scott v. Commissioners of Civil Service, 272 Mass. 237, 172 N. E. 218 (1930).
100 Stephens v. Civil Service Commission, 101 N. J. L. 192, 127 Atl. 808 (1925).
101 People v. Wallace, 55 Hun 149, 8 N. Y. S. 591 (1889).
102 Matter of Sullivan v. Gilroy, 55 Hun 285, 8 N. Y. S. 401 (1890).
108 State ex rel. Kangas v. McDonald, 188 Minn. 157, 246 N. W. 900 (1933).
104 Matter of Allaire v. Knox, 62 A. D. 29, 70 N. Y. S. 845 (1901), affirmed, 168 N. Y.
642, 61 N. E. 1127.
124 CIVIL SERVICE LAW
court will confront him with the doctrine of laches in such a case if he
asks for mandamus to have his name advanced to the head of the list. 105
A preference in appointment or to a position on an eligible list is not to
be confused with a right to certification as to competency. 106
It has been held that a preference as to a place on the certified list
does not entitle the veteran to any preference in appointment, the latter
not being expressly granted. 107 If the statute permits of the interpretation
that the appointing officer may use his discretion, the courts favor that
reading. Thus, any provision indicating that veterans are to be preferred
over nonveterans, when they are equal, leaves the officer free to appoint
a nonveteran if he is higher on the list than a veteran. 108
A preference that is phrased in terms of appointment, but which does
not make reference to a position on the eligible list and says nothing
about certification, should not be held to affect certification. 109
When the preference is general and is in terms of appointment, a vet-
eran who stands among the three highest is entitled to the appointment,
but a veteran whose standing on the eligible list is such that he is not
among the first three certified cannot claim that the commission should
certify the names of the three veterans who stand highest on the list. 110
A statute could be phrased so as to accomplish this, but it would have to
make it clear that such is the rule. 111
The problem of enforcing the right to preference sometimes proves a
difficult one. Mandamus will lie only when the right is one to which the
applicant is clearly entitled and when he is one to whom the officer owes
a duty. The statute provided that a veteran "whose name is on the eligible
list for a position shall be entitled to preference in original appointments
to any such competitive position . . . over all persons eligible for such
appointments and standing on the list thereof with a rating equal to that
of such soldier . . ." Under such a statute, if two veterans are on a certi-
fied list and a third person who is a nonveteran is on the list with them,
and one of the veterans asks for mandamus to compel the appointing
officer to appoint him instead of the nonveteran, he will fail, because the
officer may choose to appoint the second veteran, and inasmuch as he
possesses this discretion, mandamus is inappropriate as a remedy. 112 The
105 People ex rcl. McSweeney v. Collins, 276 111. App. i (1934).
106 In re Brown, 60 Hun 98, 14 N. Y. S. 450 (1891).
107 Corliss v. Civil Service Commissioners, 242 Mass. 61, 136 N. E. 356 (1922).
108 People ex rel. Chin v. Poillon, 16 Abb. N. C. 119 (1885). See People ex rel. Schultz
v. Scott, 163 Minn. 190, 203 N. W. 774 (1925).
109 See People ex rel. Schultz v. Scott, 163 Minn. 190, 203 N. W. 774 (1925).
110 People ex rel. Drake v. Common Council, 26 Misc. 522, 57 N. Y. S. 617 (1899).
m People ex rel. O'Brien v. French, 51 Hun 345, 4 N. Y. S. 330 (1889).
112 Sergeant v. McSweeney, 126 Oh. St. 623, 187 N. E. 241 (1933). See People ex rel.
Conlin v. Dobbs Ferry, 63 A. D. 276, 71 N. Y. S. 578 (1901).
VETERANS' PREFERENCE 125
court pointed out that the law did not give one veteran any preference
over another, but only a preference over those who were not veterans.
Sometimes the preference is granted to veterans of a designated group,
with the qualification that they be of good moral character and be able
to "perform the duties of said position." The ability to "perform the
duties of the position" demands something more than an ability to per-
form the duties, and signifies that the veteran must be able to perform
the duties reasonably well before he can claim the benefit of prefer-
ence. 113 The public service is not compelled to accept the lowest possible
standard of performance because of veterans' preference laws. The ap-
pointing officer does not lose his power to determine the business capacity
of a veteran who has been certified as eligible for appointment, even
though the statute recites that passing the examination and being certi-
fied as eligible shall be "regarded as evidence" that the candidate pos-
sesses that business capacity demanded by the particular position for
which he has been certified. 114
The requirement that the appointing officer shall make an investiga-
tion "as to the qualifications of the veteran for the place or position" does
not mean that the appointing officer must carry through an investigation
if he is personally acquainted with .the applicant and his qualifications. If
the appointing officer knows that the candidate is not really fit for the
position, that is sufficient. 115 Given an honest use of discretion on the
part of the appointing officer, it is not for the court or the jury to inter-
Because of the attempt of many personnel agencies to evade veterans'
preference laws by fixing age limits that will exclude the veterans of past
wars, some statutes require that age shall not be considered in making
the appointment if the veteran is otherwise qualified. A typical provision
of this kind is as follows: ". . . and it is further provided that the persons
thus preferred should not be disqualified from holding any position on
account of their age, or by reason of any physical disability, provided
such age or disability does not render them incompetent to perform the
duties of the position applied for." It has been held that such a provision
benefits those in the service as well as applicants for admission to it. 116
How shall disability be determined when veterans who have been
disabled in actual service are given a preference ? One statute recited that
veterans who were disabled in actual service and who were recognized
by the United States Veterans' Bureau "and whose disability exists at the
113 State ex rel. Meehan v. Empie, supra, note 86.
114 Jones v. Orlando, 119 N. J. L. 227, 195 Atl. 717 (1937).
115 State ex rel. Moilan v. Brandt, 178 Minn. 277, 226 N. W. 841 (1929).
116 People ex rel. Washburn v. French, 52 Hun 464, 5 N. Y. S. 712 (1889). Sec State
ex rel. Abati v. MacDonald, 185 Minn. 194, 240 N. W. 361 (1932).
n6 CIVIL SERVICE LAW
time of his or her application for such appointment" should be preferred.
The court held that it was for the national bureau to decide whether the
disability had resulted from war service, but that it was for the state
agencies to decide whether the disability existed at the time that the pref-
erence in appointment was to become effective. 117
The offices or positions for which preference is to be effective have
caused some difficulty, owing to the phraseology of some of the prefer-
ence statutes. It has been held that a statute which gives preference as
to "appointments, employments, and removals in public departments
and upon public works" and relates to "state, judicial, county, township,
city and town officers" does not extend the preference to the position of
a department head. 118 The labor class has been held to be excluded from
a preference statute which provided that in every public department and
upon all public works of the state, veterans of the Civil War "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 providing their fitness shall have been ascertained." The
court said that there was no eligible list for laborers, so that the general
import of the act with reference to ascertainment of fitness could not be
extended to cover the labor group. 119 Other exceptions, such as that of
confidential positions, 120 are to be found in statutes and cases.
Special remedies are often granted by statute to veterans who claim
that they have been denied a preference to which they are entitled under
a statute. An action for damages against the officer who refuses to accede
to the veteran's claim to preference is sometimes provided for in the
laws. 121 In some instances such a sanction has proved of great practical
importance in the actual administration of the preference laws.
The rules that govern defective appointment of veterans and the
methods of curing such appointment are the same as those that apply to
appointments in general. There is nothing in veterans' preference laws
to prevent these rules from operating in their normal manner. A de-
fective appointment that cannot be converted into a valid one by the acts
of the parties under the general rules cannot be so converted simply be-
cause the appointee is a veteran.