The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-03-12
OLD SOLDIERS WIN
Their Preference Law Upheld
by Supreme Court.
IL. *. Goodrich Entitled to Of
flee in Topeka.
MITCHELL MUST QUIT.
Appointed Superintendent OF
Light Plant by Mayor.
Veteran Was Displaced to Make
Room for H i'm.

that H. K. Goodrich is entitled to the
appointment as superintendent of the
Topeka city electric light plant instead
Of Porter Mitchell. Mayor Bergundthal's
appointee. The decision is made in an
opinion unfolding the constitutionality
of the old soldiers preference law, pass
ed by the legislature of 1901.
Goodrich is an old soldier but Mitch
ell is not. Under the veterans prefer
ence law when an old soldier applies for
an office and he has qualifications equal
to those of any other applicant it is
mandatory upon the appointing officer
to appoint the old soldier, and if he does
not do it he may be impeached. The
law applies to every officer or public
board with appointing power from gov
ernor down to the mayor of the smallest
town.
The allegation can be set up, how
ever, by the appointing officer that the
qualifications Of the old soldier are not
equal to those of the other applicant.
This was done in the Dever case from
Junction City. which, was also decided
today. and the supreme court held for
the appointee of the mayor. IN that
instance Thomas Dever an old soldier
applied for the office of city attorney
but was turned down by the mayor He
brought suit in the district court to
oust the successful applicant, but the
mayor set UP the defense that Dever
was not as well qualified for the place
as the man he appointed, and the su-
preme court holds that this is a legal
justification for his action.
In the Goodrich case in Topeka,
Mayor Bergundthal refused to reap
point Goodrich but gave the job of
SIIn6Tinfan0a11f nf ho fy a1o ofrio foI7f
plant to Porter Mitchell. Goodrich
brought quo warranto suit in the su-
preme court to oust Mitchell. Mitchell S
attorneys agreed, in a statement of
facts, that the two applicants were of
equal qualifications. This is what cost
Mitchell his job. If it had been con-
tended that Mitchell was better quail
fed for the place than Goodrich, the
decision would have been the same as
in the Dever case.
The effect of this decision will be far
reaching, as it applies to every appoip-
tive office and job in the state. If a
Democratic soldier should apply to
Republican governor for an appoint
ment and should prove that he is as
well qualified for the appointment
as any other applicant, the gov
ernor could do nothing but appoint him
or else forfeit his own office.
The syllabus in the case is brief. Tt is
as follows:
"Section 1, of chapter 1856, of the laws
of 1901, which provides that those who
have served in the army and navy of
the United States in the war of the re-
bellion, and have been honorably dis
charged therefrom, shall be preferred
for appointment to office inevery public
department, and upon all public works
of the state, and of the cities and towns
thereof, is constitutional"
MITCHELL WILL GIVE UP.
Porter Mitchell. the Bergundthal ap-
pointee, who will now have to give up
his office, said this morning when noti-
fed by the State Journal office that
Goodrich had won his case:
Il suppose this means that I viii have
to give up the office. Well, I won't
make any fight to retain it, if the courts
say I am not entitled to it,
Mayor w. S. Bergundthal says: "Por-
ter Mitchell will have to give up the
office, 1 suppose. I certainly am sur
prised that this was the decision. The
suit was not brought against me, but
was brought to get possession of the
office. If the supreme court says that
Goodrich is entitled to the office, that
settles it. 1 am not disposed to defy
the courts"
When it was suggested that the de-
cision might cost him his job, Mayor
BergundthaI did not appear to be great
ly worried. Il hope that the county at
torney will not commence proceedings
against me before Monday morning." he
said
H. K. Goodrich, the successful can
didate says: 1T is the triumph of the
principle that Dleases me especially.
am glad that the rights of the old sol
diers under this law are protected. 1
am in no great hurry to take the office.
If the mayor seems to be willing to
abide by the decision of the court, will
not follow the case any further in an
effort to prosecute him or oust him from
office. We are all law and order people,
and I don't believe in kicking a man
when he is down. Whether I will sue to
recover the salary oe the office for the
past year is a matter which 1 have not
decided. I have not talked to my at
torney about it,
David Overmyer, who was one of Mr..
GoOdrich'S attorneys, SaiS: 'I am much
pleased that we should have vindicated
this principle; it is quite a victory for
a lawyer. and a Democratic lawyer at
that. In this case it was agreed that
the men were of equal qualifications;
the issue was Squafely on the law.
don't know what Mr.. Goodrich proposes
to do now; l was engaged for this case,
and have won it for him. [ suppose.
however, that there will be no DISPOSE
ton to be harsh in the matter The
defendant has twenty days to file an
application for a rehearing. suppose
that nothing will be done until the ex-
piration of that time Mr. Goodrich
has nothing to do with any effort to
oust the mayor from office: that is the
business OF the county attorney. our
suit was to get possession of the office,
and the decree of the court gives US
possession. No appointment from the
mayor is necessary. If the mayor at
tempts to go contrary to this decree,
he may have trouble with the court.
He can not now appoint any other old
soldier besides Mr.. Goodrich: it is too
late for that. In due time I suppose
that Mr.. Goodrich will make a demand
for the o1Ece''
P. H. Coney, who as attorney on be-
half of the old soldiers, was responsible
for the suit, is very much pleased. 1T