Montana Attorney General Opinion 15-417

Opinion No. 417 "etel-ans-Ex-Sel"Vice l\Ien-Pl'efel'- enee fOJ' Appointment and Employ- ment, H];;LD: Rt'Ction 565::1, R C. M., 1021, as amended hy Chapter 133, Laws of 1027, nllidl.Y ;.:iYe" honorably dis- charged "derans a preference, where qualifications are equal, to puhlic po- ,.;ilions filled by appointment. Thc Veteran must apply for the po- sition allll point out his right to pref- erence. He may apply to the courts for re- dress where it appears that he was arbitrarily or capriciousl~' or in bad faith refused the appointment. January n, 1!l34. You have requested our opinion on the preference rights, if any. of ex- service men in the matter of public employment. So far as pertinent here Section 565:~ HeYised Codes of 1921, as amended b~' Chapter 133, Laws of 1927, prol'ides as follows: "In e,ery public department. and upon all public works of the State of Montana, and of any county and city tbpl·eof. hononl hly discharged Union soldiers and sailors and their widow,: of the Civil W'ar. the Spanish-Ameri- can 'Val', the Philippine Insurrection. and of the late war with Germany and her a \lies, * • ,. shall be preferred for appointment and employment; age, loss of limb or other physical impairment. which does not in fact incapacitll,te, shall not be deemed to disqualify thcm. provided they possess the business ca- pacit.I-, competency and education to discharge the duties of the position in- volyed; • * *." 'Ve think this law is a valid expres- sion of the legislati,e will. Certainly. statutes almost identical with it hal'e heen subjected to attack in the courts on one constitutional ground or an- ot.her and have been invariahly up- held. (Goodrich Y. Mitchell, 75 Puc. 1034; Shaw Y. City Council, 104 N. W. 1121, 10 L. R A. (n. s.) 825; State v. I~mpie, 204 N. 'V. 572; 8wantush v. City of Detroit, 241 No W. 265; 46 C. .T. n58. See, also. Opinion of the .Tns- tices, 44 N. E. 625.) The cases cited recognize the power of the legislature to ),rjl'e to honorably discharged veterans a preference, where the qualifications are equal, to public places filled by appointment by some offieer or board of the state, county or municipal gOl'ernment, as a reward for past services rendered in the army or na,'y in time of wal', and as a means of promoting patriotism. Xeedless -to say the "eteran who would benefit by the law must apply for the vacant position and must bring the fact that he is entitled to prefer- ence to the attention of the appointing power. (People Y. Himonson, 72 N. Y. ~. 84; 46 C. J. 959.) 'Vhere the veteran is refused the po- sition sought, lind it appeal's the board or offic.'i:!I' making the appointment act- ed arbitrarily or capriciously or in bad faith, he llIay apply to the courts for 290 OPI.:xW.:xS OJ!' ~'I-m ATTOH.:xEY Cm.:xERAL l'edrel5s. (Sta te Y. Addi~on. !l2 Pac. 581; State Y. Empie, Supra; State Y. Dis- trict Court, 50 Mont. 289; State v. Board of Examiners for Nurses, 52 ~Iont. 91; 38 C. J. 598; 46 C. J. 959.) In conclusion, we belie"e the statute in question is calculated to serve a use- ful and beneficent purpose and shoul(l be observed whenever possible.