New York County NyArchives Court.....People, Ex Rel George Washburn Vs. Samuel French 1889
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Source: Reports Of Cases - New York
Written: 1889

Cases Determined in the FIRST DEPARTMENT at GENERAL TERM, May, 1889.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE WASHBURN, Relator, v. SAMUEL 
B. FRENCH and Others, Commissioners Composing the Board of Police of the Police 
Department of the City of New York.

Veterans of the war — dismissal of, from the New York police force, simply on 
account of age, is improper — chapter 29 of 1886 relates to veterans in office 
as well as to applicants for office.

The relator was appointed a patrolman by the board of police commissioners of 
the city of New York in the year 1856. In 1862 he entered the army and served 
during the war, and to its close in 1865, when he was honorably discharged. 

In 1865 he was again appointed a patrolman, and continued to be a member of the 
force until June, 1887, when he had attained to the rank of captain. On the last-
mentioned date he was dismissed and placed on the roll of the police pension 
fund for the reason that he had reached the age of sixty years, such dismissal 
being made under the authority of section 2 of chapter 364 of the Laws of 1885.

Held, that, under the provision of chapter 29 of 1886, providing that a veteran 
of the war shall not be disqualified for holding any position on account of his 
age, or by reason of any physical disability, provided that such age or 
disability does not render him incompetent to perform the duties of the 
position, a dismissal of the relator from the police force simply upon the 
ground of his age was improper.

The provisions of the act (chap. 29 of the Laws of 1886) relate to the 
qualifications of veterans of the war actually in office as well as to those of 
such veterans who are applicants for office.

Certiorari to review proceedings of the board of police commissioners, retiring 
the relator from service and placing him on the pension-roll.

Louis J. Grant, for the relator.

David J. Dean, for the respondent.

Van Brunt, P. J.:

The relator was appointed a patrolman in 1856. In 1862 he entered the army and 
served during the war to its close in 1865, when he was honorably discharged. 
Thereafter, in 1865, he was again appointed patrolman, and continued to be a 
member of the force until June, 1887, in the meantime having attainted the rank 
of captain. On the last-mentioned day he was dismissed and placed on the roll of 
the police pension fund, because he had then reached the age of sixty years, the 
authority to make such dismissal being claimed from the provisions of section 2 
of chapter 364 of the Laws of 1885. The question now brought up for review is 
whether the commissioners had the authority to discharge the relator, he being a 
veteran soldier and honorably discharged from the service of the United States, 
because he had reached the age of sixty years.

Section 2 of chapter 364 of the Laws of 1885 provides that any member of the 
police force who shall have reached the age of sixty years shall, by resolution 
adopted by a majority vote of the full board, be relieved and dismissed from 
said force and service and placed on the roll of the police pension fund. It is 
clear that, under this legislation, the commissioners had not only the power, 
but were required to make the removal upon the arrival of the relator at the age 
of sixty years.

It is, however, urged that the relator was relieved from the provision of the 
act of 1885, above quoted, because of chapter 29 of the Laws of 1886, which 
provided that chapter 410 of the Laws of 1882, an act to regulate and improve 
the civil service of the State of New York, should be amended by requiring the 
civil service commissioners to report names for appointment of veterans of the 
war, and that such persons shall be preferred for appointment for positions in 
the civil service over all other persons, though graded lower than others so 
examined and reported, provided their qualifications and fitness shall have been 
ascertained as provided in the act. And it was further provided that the person 
thus preferred should not be disqualified from holding any position on account 
of his age or by reason of any physical disability, provided such age or 
disability does not render him incompetent to perform the duties of the position 
applied for.

In answer to this claim it is urged, upon the part of the respondent, that the 
provisions of the act of 1886 applied only to the applicants for appointment to 
the office, and have no bearing upon the qualifications of those actually in 
office. It is a familiar rule, in the construction of statutory and 
constitutional law, that the intention of the law-making power shall be 
ascertained from the language of the act, from the nature of the subject-matter 
as to which the legislation is enacted, and the objects to be attained by such 
legislation, and that the mere language of the act cannot be permitted to 
override such intention where it is clearly to be gathered from the act under 
construction and the surrounding circumstances. Now, it is apparent, from a 
reading of the act of 1886, that it was the intention to relieve veterans of the 
late war from the disabilities which other persons who had not the same claim to 
recognition were resting under in respect to holding office, and, therefore, it 
provided that such persons should not be disqualified from holding any position 
in the civil service of the State on account of his age or by reason of any 
disability, providing such disability did not render him incompetent to perform 
the duties of his office.

It certainly cannot be presumed to have been the intention of the legislature to 
place an applicant for an office in a better position than a veteran who had 
already been appointed. In other words, that a veteran whose qualifications were 
not sufficient of themselves to require his appointment under the civil service 
act because there were others who might be better qualified, should be preferred 
over a veteran who had been appointed because his qualifications alone compelled 
his appointment. It cannot be presumed that the legislature intended to work 
such an injustice, and if a construction can be adopted which gives force to the 
whole act and to an intention which does not work such an injustice, such a 
construction must necessarily be adopted.

It seems to us clear that the intention was to relieve veterans from the 
disqualification of age, and that in making use of the words "a person thus 
preferred" in the act of 1886, they undoubtedly intended that such person should 
not be disqualified from holding any position in the civil service on account of 
his age, not merely after he had actually been thus preferred for the purpose of 
appointment, but that he would, under the terms of the act, be entitled to that 
preference, if he could claim such preference, in case he was an applicant for 
appointment.

If this is not the true construction, then a member of the police force, who is 
removed on account of age, would have a right to apply, under the act, for 
reappointment, and the police commissioners would be required to reappoint him 
to the position from which he had been removed on account of age. This, of 
course, would refer but to patrolmen, and would not necessarily refer to the 
higher ranks of the service, which are required to be drawn from the lower 
positions of the force. Such an anomalous condition of affairs was never 
intended by the legislature. It is clear that it was intended to relieve 
veterans from the disqualification of age, and as a consequence the powrer of 
the commissioners to remove a veteran because he has reached the age of sixty 
was thereby repealed; and the relator having been removed for this cause, and 
being a veteran, is entitled to be reinstated. 

The proceedings should be reversed and the relator reinstated, with costs.

Cullen, J., concurred.

Proceedings reversed and relator reinstated, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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