The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-03-21
OLD SOLDIER LOSES
Law Giving Preference Inter-
preted by Appellate Court.
JUDGE MILLIONS OPINION
Says Proper Way Is to Arrest
for MiSdemeanor

w. A. Ayers, clerk of the appellate
court, has received the decisions recent
ly handed down at Fort Scott. Chief
among the opinions rendered is one af-
fectkng the rights of old soldiers under
the act Of the legislature giving them
the pre- ference in all appointments to po-.
sitions in this state. The case wa
brought up from the district court ali
Emporia and is one in which D. M.
THOMPSON, an old soldier Of that city, en-
Soins the mayor and city council from
paying the regular appointee, who was
not an old soldier, his salary. At the
same time Mr.. Thompson sought to OBJ
tain a mandatory injunction compelling
the mayor and city council to appoint the
plaintiff to the position. The defendants
offered a demurrer, which has been sus-
tanned all the way through. The opinion
of the appellate court was rendered by
Judge Milton who holds that the proper
remedy in such cases is the punishment
of the men who make such appointments
on the grounds of a misdemeanor. The
opinion is Of interest to old soldiers, and
is as follows:
'aThis action was brought by the plain |
tiff in error against the city of Emporia, |
its mayor clerk and councilmen, and one |
Owen Thomas to restrain the latter from /
entering upon or further prosecuting or |
dischaYging or attempting to discharge |
the duties of assistant engineer of the |
waterw~orks belonging to the said city, |
and to restrain the city officers from
auditing or allowing any claim Of said |
Thomas for services in the capacity |
named and to procure a mandatory in
junction commanding the mayor and
council te' appoint the plaintiff to the po-
stion named. The section is based upon
the provis ions of section !, chapter 100,
laws of 1885, which reads:
I'm gra teful recognition of the ser
vices, sacrh ices and sufferings of persons
who served in the army and the navy of
the United States, in the war of the re-
belion and have been honorably dis
charged the -efrom, they shall be pre-
fetred for appointment and employment
to positions in every public department
and upon all public works of the state Of
Kansas. and of the cities and towns Of
this state. over other persons of equal
qualifications; and the same persons thus
preferred shall not be disqualified from
holding any position in said service on
account of his age, nor by reason Of any
physical disability; providing, such age
or disability does not render him incom-
petent to perform the duties of the po-
sition applied for
"The petition, which was filed on Janu-
airy 9, 1876, sufficiently alleged the plain
tiff's gener raj qualifications to fill the po-
sition sought and also his special quail
fications within the terms OF the statute;
that the DEFENDANT, Owen Thomas had /
not served in the army or navy of the
United States, that on January g. 1896, |
at a regular meeting Of the city council
of said city, duly convened in session,
this plaintiff applied to said council,
which had the power of selecting per-
son 70 rsaid position, for the position,
office, place and employment Of assistant
engineer of and at the waterworks of
said city, and this plaintiff AYERS that he
was the only person possessing said quail
f1cation and being 50 as aforesaid, honor
ably discharged, who did apply to said
council for said position, save one Eli w.
Flenner. who has with trawn all claim to
such place IN favor OF tflis PLAINTIFF: and
that the said mayor and councimen
with full knowledge of the foregoing
facts. unlawfully and corruptly refused
to appoint the plaintiff to the said po-
sition and unlawfully and corruptly ap-
pointed said Owen Thomas. To this pc
tition the defendants demurred, on the
grounds that the plaintiff had no legal
capacity TO sue, and that the petition did
not state facts sufficient to constitute a
cause of action The demurred was sus-
tanned and judgment entered in favor of
the defendants for costs. The plaintiff
below alleges error in the ruling and
judgment of the court.
The case has been very ably briefed
and we have considered with much care
the questions which have been discussed
by counsel 1t appears. however, that the
decision of the trial court must be sus-
tanned for reasons not involving a dis
cussion oT gthese questions In the first
place the petition indicates that Eli w.
Flenner. who was an applicant for the
position of assistant engineer on January
.. 1875, possessed the same qualifications !
as the plaintiff Hence it cannot be posi-
lively ascertained from the petition thai
the plaintiff would have been appointed
even If Thomas had not been chosen.
Again. since the position in question.