Supreme Court, June, 1920. [Vol. 112. States." 1918 Comp. Stat. Supp. § 21152-d. Section 9 of the Trading with the Enemy Act prescribes the procedure and regulations under which claims may be made against the alien property custodian. This section also provides that if the claimant shall have fulfilled certain requirements," said claimant may, at any time before the expiration of six months after the end of the war, institute a suit in equity in the district court of the United States for the district in which said claimant resides, or, if a corporation, where it has its principal place of business (to which suit the alien property custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if suit shall be so instituted then the money or other property of the enemy, or ally of enemy, against whom such interest, right, or title is asserted, or debt claimed, shall be retained in the custody of the alien property custodian, etc. In support of its defenses the attorneys for the defendant cite the following cases decided in the federal courts: Spiegelberg v. Garvan, 260 Fed. Repr. 302; Salamandra Ins. Co. v. New York Life Ins. & Trust Co., 254 id. 852; Fischer v. Palmer, 259 id. 355; and two cases decided by the courts of New York state, Biesantz v. Supreme Council, Royal Arcanum, 106 Misc. Rep. 545; Wageck v. Travelers Ins. Co., 108 id. 65. None of those cases, however, presented the point here raised for decision. In all of them there was a controversy over specific property that had either been delivered to the alien property custodian or that had been seized or claimed by him. The language of the statute is that: "The sole relief and remedy of any person having any claim to any money or other property delivered or paid over to the Alien Property Custodian," etc., and * Misc.] Supreme Court, June, 1920. each of the cases above cited came within that provision. The present action, however, is not brought to recover any money or property in the possession of the alien property custodian or any other specific money or property whatsoever. It is brought merely to determine the obligation of an alien enemy. If the plaintiff succeeds in obtaining a judgment it may some time in the future seek to reach property in the possession of the alien property custodian, but if it ever does so, then its proceedings will be governed by the statute. It may, however, make no move to enforce its judgment until peace has been declared, and the remainder, if any, of the property now in the possession of the alien property custodian has been turned back to the defendant, thus becoming subject to the ordinary processes of execution. Or again, the plaintiff may seek to satisfy its judgment in some other jurisdiction than the United States, and out of property of the defendant in some other jurisdiction. The policy of the statute in question, as I understand it, is to impound under control of the government of the United States the property of alien enemies, in order that such property may not be used in the interests of an enemy government or against the interests of our own government. I cannot discover that the purpose of this statute will be defeated or obstructed or even touched by permitting such an action as this to be prosecuted to judgment in the courts of this state, and I cannot find in the letter of the statute any prohibition against such a prosecution. There is nothing in the statute to indicate and no reason to suppose that our government intended that this act should handicap its own citizens. It may be presumed that the governmental intention was to the contrary. The construction which the defendant seeks to have placed upon the statute would, however, work an injury to our own Supreme Court, June, 1920. [Vol. 112. citizens by depriving them of a jurisdiction which would, in normal conditions and in times of peace, be open to them and which, for some good reason or other, they might prefer to resort to, just as the plaintiff in this case prefers to resort to the jurisdiction of the courts of this state. I am, therefore, of the opinion that both defenses are insufficient, and that it is unnecessary to make the alien property custodian a defendant, and that this court has jurisdiction of the action. The demurrer should, therefore, be sustained, with costs, with leave to the defendant to amend within twenty days after service of a copy of the interlocutory judgment to be entered hereon, with notice of entry thereof and upon payment of such costs. · Ordered accordingly. Matter of the Application of CHARLES BARTHELMESS and Others v. MORRIS CUKOR and Others, Constituting the Municipal Civil Service Commission, etc., for a Writ of Mandamus. (Supreme Court, New York Special Term, June, 1920.) Constitutional law constitutionality of Laws of 1920, chap. 282 Civil Service Law World War. The statute (Laws of 1920, chap. 282) which declares that a public employee who had secured a place on the civil service eligible list by competitive examination before or while in the military or naval service in the World War shall be preferred for any appointment or promotion thereafter made in such grade in the department in which he shall be employed, is constitutional. APPLICATION for a writ of mandamus. Albert De Roode, for relators. Misc.] Supreme Court, June, 1920. Denis R. O'Brien, for Civil Service Forum, for the application. John P. O'Brien, corporation counsel, Eugene Sweeney, assistant; Cornelius W. Wickersham, for American Legion; Merrill E. Gates, Jr., for War Service Men, opposed. TIERNEY, J. The civil service section of the Constitution (art. 5, § 9) contains the proviso that veterans of the Civil War shall be entitled to preference in appointment and promotion without regard to their standing on any list. It is argued from this that the legislature is precluded from creating a preference in appointment or promotion to any other candidate upon a list, and there is force in this contention. It is obvious that the legislature cannot provide for any preference that would conflict with that given to the veterans of the Civil War, and any act that creates another preference must be construed as being in subordination to the preference provided in the Constitution even though not expressly so stated. The legislature has enacted by chapter 282 of the Laws of 1920 that a public employee who had secured a place on the civil service eligible list by competitive examination before or while in the military or naval service in the World War shall be preferred for any appointment or promotion thereafter made in such grade in the department in which he shall be employed. It is claimed that this violates the provision of the Constitution that appointments and promotions shall be made according to merit and fitness to be ascertained so far as practicable by examinations which, so far as practicable, shall be competitive. If the Constitution made the result of the competitive examination the sole test of merit and fitness, there would be no question that this statutory preference would be in viola Supreme Court, June, 1920. [Vol. 112. tion of the Constitution. It is obvious, however, that it was intended that other factors which go toward making up the merit and fitness of a candidate for appointment or promotion were to be given consideration in determining the candidate's position on the list. I think it was competent for the legislature to determine what weight should be given to the experience of a candidate in the military or naval service in determining his position in the eligible list provided that his eligibility was determined by competitive examination. This element of experience has always been taken into consideration in the administration of the civil service laws, and the action of the legislature is an extension of the application of the same principle. It has been carried further in the act referred to than in any previous instance, but I do not think that it can be said to be in violation of the spirit of the constitutional provision which prescribes that laws shall be made to provide for the enforcement of the section. The question is not free from doubt, but that is not a ground that would justify this court in the first instance declaring an act of the legislature void. The application for a writ of mandamus is, therefore, denied. Application denied. |