Ernser v. Walcott

WASTE, C. J.

This application for a writ of mandate involves the question whether or not “veterans” (as defined in section 22 of article XIII of the charter of the city and county of San Francisco), whose names appear on the “current firemen’s list” of persons eligible for appointment to positions in the fire department, shall be certified by the respondent Civil Service Commission ahead of nonveterans on the same list.

Appointments to positions in the fire department are subject to the provisions of article XIII of the charter. At the general election held on the second of November, 1920, the people of San Franeicso added a new provision to article XIII, known as section 22. After defining the term “veteran” to mean “any person who has served in the Army, the Navy or the Marine Corps of the United States in time of war, or in any expedition of the armed forces of the United States, and received an honorable discharge or certificate of honorable active service,” the section provides that the Civil Service Commission “shall by rule establish preference for veterans as follows: In the case of entrance examinations to establish eligible lists in the Police and Fire Departments, veterans who become eligible for appointment by attaining the passing mark established for the examination, and whose service as veterans exceeds three months, shall be classified on such eligible lists in the relative order of the individual ratings attained, and ahead of all nonveterans passing such examinations, and shall be eligible for appointment on the basis of such order of standing on such eligible lists. This preference shall expire five years after the ratification of this amendment.” (Stats. 1921, p. 1797.) This amendment became effective by approval of the legislature on the twenty-first day of January, 1921.

For the purpose of complying with the charter amendment, the Civil Service Commission in February, 1924, adopted a rule (rule 40, sec. 8) providing for preference

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for veterans attaining the passing mark in entrance examinations for firemen and policemen, which follows substantially the language of section 22 of article XIII of the charter, and providing the preference should expire at the close of January 13, 1926. Thereafter the commission held an examination for the position classified as fireman, and rated the standing of the persons participating. On the ninth day of December, 1924, it prepared a list of eligibles made up of all those who had participated in the examination, and whose average standing was not less than the minimum percentage fixed by the commission as the passing mark. It adopted a list of five hundred and ninety-three firemen “arranged in the order of excellence of general average percentage as determined by the examination” regardless of whether the successful candidate was or was not a veteran. Numbers one, two and three on the list were nonveterans. Numbers four and five were veterans. Number six was a nonveteran. The arrangement continued in that manner through the entire list of five hundred and ninety-three successful candidates, each veteran being designated by a “V” before his number on the list. While this arrangement did not amount to a classification of veterans “ahead of all nonveterans passing such examination,” it was provided in the resolution adopting the list that “war veterans [should] be preferred over all nonveterans for certification, such preference to be given to the veterans in the order of their standing upon [the] list.”