McCarthy v. Civil Service Commission

NOURSE, J.

Petitioner sued in the superior court for a writ of mandate requiring the defendants to award him three additional credits in a promotional examination for the position of lieutenant in the fire department, because of Ms status as a veteran. Judgment went for petitioner on the pleadings and the defendants have appealed on a typewritten record.

The petitioner was employed in the municipal service of the city and county of San Francisco from September, 1917, until March, 1921, except for a period of one year when he

[750]

was in the service of the United States army. In August, 1926, he returned to the service of the city and county as a hoseman in the fire department and, in February, 1927, participated in a promotional examination for the position of lieutenant in that department. As a result of this examination the petitioner received such an average as to cause him to be placed number sixty-six on the register of eligibles for promotion. His demand that he be awarded additional credits because of his status as a veteran is based upon that portion of section 22 of article XIII of the San Francisco Charter, which reads: “in the case of promotional examinations a credit of three points shall be allowed to veterans—who shall have been in the city and county service prior to July 1, 1920.”

It is the contention of the appellants that the expression “shall have been” should be interpreted to apply only to such veterans who had been in the city service prior to July 1, 1920, and who had remained continuously in such service thereafter until the time of the promotional examination—that, because petitioner had severed his connection with the city service for the period from March, 1921, to August, 1926, he did not come within the class of those entitled to the veterans’ preference. In support of the argument appellants point out that the words “shall have been” are in the future perfect tense, and they argue that if this continuous service had not been desired the framers of the charter amendment would have used the past perfect tense with the words “had been.”

The amendment was adopted by the electors of the municipality at the general election in November, 1920, and was affirmed by the legislature in January, 1921. In providing that the preference should go only to those veterans who were in the city service prior to July 1, 1920, no reason has been given for the selection of that date other than that it was about the time when the supervisors of the city were considering submitting the proposal to the electors at the ensuing general election.