App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. to the veteran over others, without regard to his relative standing upon the list. The statement in this opinion that the fitness of the applicant to discharge the duties of the position is determined by the fact that his name is on the eligible list assumes, of course, the validity of the legislation by which the ascertainment of such fitness is delegated to the examining board. Certainly there is nothing in the Balcom Case (supra) which suggests that such fitness may not lawfully be determined by a civil service examination. Section 9 of article 5 of the Constitution expressly provides that the merit and fitness of candidates for appointment shall be ascertained by civil service examinations, so far as practicable, and the duty is enjoined upon the Legislature of passing laws for the enforcement of this section. Civil service regulations existed in this State by virtue of legislative enactment for many years prior to the Constitution of 1894, and it has never been doubted that the people, by whom the power to make appointments is conferred upon the local authorities, could lawfully require that such power should be exercised in obedience to the results obtained in open competitive examinations, rather than in response to the dictates of partisanship and favoritism. In Matter of Stutzbach v. Coler (supra) Chief Judge PARKER said (p. 421): "When a list is made up of persons whose merit and fitness have been ascertained according to law, then such honorably discharged soldiers and sailors of the Civil war as appear thereon are entitled under the Constitution to preference in appointment and promotion therefrom, but the Legislature cannot dispense with the necessity of ascertaining the merit and fitness of all applicants for employment in the civil service, for the Constitution safeguards the public service against all such attempts." (See, also, Matter of Keymer, 148 N. Y. 219.) It follows that the Legislature in providing by the Civil Service Law for the ascertainment by the examining board of the qualifications and fitness of applicants for office acted strictly in accordance with the terms and requirements of the Constitution, and that if the power of appointment vested in the local authorities. under section 2 of article 10 of the Constitution has been qualified thereby, it is a qualification limited by the Constitution and not by the Legislature. The Balcom case, however, dealt with a provision of law not sanctioned by the Constitution, and which gave to the SECOND DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. veteran graded highest on the eligible list a preference over his comrades. This provision was held to be unconstitutional, but there is no suggestion in the case that it is unconstitutional in any sense for the Legislature to provide that the merit and fitness of applicants for public place shall be ascertained and determined by competitive examination, and certainly nothing suggestive of the theory that the preference given to veterans irrespective of their standing on the list is inconsistent with the power of appointment vested in the local authorities. Nor is it necessary to hold in this case that the freedom of selection existing in the appointing power is in any degree nullified by the constitutional requirements that veterans are entitled to a preference, and that the qualifications of applicants shall be determined by competitive examinations. It may be conceded that with these two requirements in view the appointing authorities may still exercise judgment and discretion in the making of a choice, but there is no pretense in the case at bar that such a choice was made in the selection of the appellant appointee as the most fit and competent of the persons on the eligible list, beyond the general assertion in the answering affidavit of the appellant commissioners that in his selection they believe that "they exercised sound judgment and discretion." The opposition to the writ is based altogether upon a denial of preference to veterans, and upon the assertion of the proposition that the opinion of the commissioners to the effect that the relator was an incompetent city clerk some years ago justifies them in ignoring the certificate of the examining board that he is now competent to discharge the duties of clerk of the board of water commissioners. Had that competency been assumed and his right to preference as a veteran conceded, but another selected as more fit and competent, with due relation to such preference and ascertained competency on the relator's part, a different question would be presented, although whether a different result would be required upon appeal need not be determined. The appellants were sufficiently advised, by the certification on the eligible list that the respondent was a veteran, of his right to a preference in appointment. No law requires that his service in the army or navy and his honorable discharge, etc., shall be recited in full. In the rules adopted by the State Commission the word "veterans " is defined as relating to "honorably discharged soldiers and sailors App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. from the army and navy of the United States in the late Civil war who are citizens and residents of this State." (See Collier Civil Service, 278.) The relator on his examination passed slightly lower than the other two; that is, his percentage of rating was slightly less; nevertheless, he was placed first on the list and denominated a veteran, and the board of water commissioners must be assumed to have understood that this was done because of his claim for a preference as a veteran, especially in the absence of any denial that they did so understand. Chief Judge PARKER said in Matter of Stutzbach v. Coler (supra, 419), speaking of the relator in that case: "He had, however, served in the Union army during the war of the rebellion and was an honorably discharged soldier, of which fact the comptroller was in ignorance, but the relator contends in this proceeding, and rightly as we think, that if under the law of the State he was entitled to be continued in employment as against other employees in his bureau who were not veterans, the fact that the comptroller was not advised of his right to preference does not deprive him of the right which the law affords him, for it is the fact of his being an honorably discharged soldier which entitles him to preference in employment and not knowledge of that fact by the head of the department employing him." The learned counsel for the appellants cites People ex rel. Dixon v. Simonson (64 App. Div. 312) as authority for the proposition that it must appear on the application that the relator did not serve in the Confederate army or navy. That requirement was contained in chapter 821 of the Laws of 1896, which was repealed, as I have said, by the present Civil Service Law. The Dixon case related to a removal in 1898, the year before such repeal, and while the legis lative requirement was in force. There was no denial of any material allegation contained in the relator's affidavit, and an alternative writ was, therefore, unnecessary. The order should be affirmed. GOODRICH, P. J., BARTLETT and WOODWARD, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. SECOND DEPARTMENT, JANUARY TERM, 1903. [Vol. 79. THE PEOPLE OF THE STATE OF NEW YORK ex rel. LOUIS WEINTZ Respondent, v. JOHN H. BURCH and Others, Forming the Common Council of the City of Middletown, and Others, Appellants. Civil service-preference to be given to a veteran as between two veterans the appointing power has the right of choice. Where an eligible list furnished by a municipal civil service commission contains the names of three persons, only one of whom is a veteran, the veteran is entitled to an absolute preference in appointment, although the other persons on the eligible list passed a higher examination than the veteran did. Semble, however, that if there were two or more veterans on the eligible list, a law confining the appointing officer's choice to the veteran graded highest on the list would violate section 2 of article 10 of the Constitution. APPEAL by the defendants, John H. Burch and others, forming the common council of the city of Middletown, and others, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 15th day of September, 1902, directing the issuance of a peremptory writ of mandamus requiring the appointment of the relator as superintendent of streets in said city. Thomas C. Rogers, for the appellants. George H. Decker, for the respondent. HIRSCHBERG, J.: The only question presented on this appeal is whether the relator is entitled to a preference in appointment for the office of superintendent of streets of the city of Middletown as an honorably discharged soldier from the army of the United States in the late Civil war. He duly submitted to an open competitive examination for the place under a claim for such preference, and there is no dispute of the fact that he is such honorably discharged soldier. The proper municipal civil service commission returned to the appointing power, the common council of the city of Middletown, appellants, an eligible list, headed by the relator's name as that of a "veteran,' and containing the names of two other applicants who passed a higher examination than the relator did, but who were not designated as veterans or as entitled to preference. One of the other App. Div.] SECOND DEPARTMENT, JANUARY TERM, 1903. applicants having been appointed, the substitution of the relator is commanded by peremptory mandamus under the requirement of the order appealed from. The State civil service rules define the term "veterans" as referring to "honorably discharged soldiers and sailors from the army and navy of the United States in the late Civil war who are citizens and residents of this State." (Rule 1, subd. 13; Coll. Civ. Ser. 278.) The term veteran has been generally adopted as signifying one of the class entitled to preference in appointment under section 9 of article 5 of the State Constitution, and it may be assumed that the appellants so understood it in this instance, especially in the absence of any statement to the contrary. The answering affidavit of the appellants asserts that they had no knowledge at the time of the appointment which was sufficient to form a belief as to whether the relator was a veteran "such as would entitle him to any preference," and claims that the designation was insufficient; but it contains no denial of the fact that he is an honorably discharged soldier of the Union in the Civil war, and no assertion that they did not understand the designation to be intended to certify that fact. The main contention of the appellants is that the relator, as a veteran, is not entitled to an absolute preference in appointment because the provisions of section 2 of article 10 of the State Constitution, supplemented by the city charter, (Laws of 1902, chap. 572, 20) confer upon the common council the power of appointment, involving the exercise of judgment and discretion in the selection of a choice, and that any provision of law which requires it to select the relator from the eligible list irrespective of its choice is unconstitutional and void. The claim may be conceded to be quite sound in the abstract, and if the relator's right to a preference depended solely upon an act of the Legislature it would be controlling in this case. But it cannot be held that a provision of the State Constitution is unconstitutional. Yet such a paradoxical holding would be necessary if the decision of the Court of Appeals in the case of People ex rel. Balcom v. Mosher (163 N. Y. 32), upon which the appellants mainly rely, is to be regarded as determining this controversy in their favor. I briefly considered that case in the case of People ex rel. Hamilton v. Stratton (79 App. Div. 149), and held that it was |