The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-06-10
Attorney General on Old Soldier
Preference Law.
Decides That Appointing Power
Determines Qualifications,
BELIEVES LAW is GOOD
Jackson Has No Doubt Of Its
Legality.
Text of the Opinion Is Delivered
Today.

An opinion on various features of the
old soldier preference law has beer
written by F. S. jackson, the attorney
general, in reply to questions from ]. J
Schenck, the county attorney. Mr.
Schenck received this opinion this af-
ternoon. An important point in it is the
conclusion of the attorney general that
in the making of appointments the APP
pointing power has the discretion to de-
ternine the qualifications of the soldier
applicant.
This matter concerning the old SOL
diers' preference law was brought to
the attention of Mr.. Schenck for an in
formal opinion on an appointment that
had been made by the mayor of Oakland
where a veteran had been an applicant
for a position. Mr.. Schenck thought it
would be we'll to get the opinion of the
attorney general on the subject as there
were grave doubts tn his mind as to the
constitutionality of the measure If 1T
left no discretion with the appointing
officer as 10 the qualifications of the
soldier applicant. So he wrote to the
attorney general and the opinion he re-
ceived today is as follows;
Text of the Opinion.
''In your letter of June sth you ask
ed my opinion on certain question
arising from house bill SS. the same
being Chap. 374 of the session laws
of 1907, as follows:
First, as to whether or not this law
is constitutional. Second. whether the
appointing power or the court must
pass upon the qualifications and COM
whether or not you advise the county
attorneys of this state to institute
prosecutions for violation of this act"
Section $500, general statutes 1901
of which house bill 3S is an amended
revision was held constitutional in
Goodrich VS.. Mitchell Sc Kansas, 1855.
The amended act materially changes
the statute. Heretofore equal quail
hcations'' were required of the ex-sol-
der or sailor seeking appointment
over rival applicants. Under the new
law it is sufficient If the ex-soldier or
sailor is competent to perform the
services Still it would hardly seem
that such provision would invalidate
the statute. The state constitution
provides:
mo special privileges or immunities
shall ever be granted by the legisla-
ture, which may not be altered, re-
voked or repealed by the same body"
The very language of the constitu-
ton contemplated that certain special
privileges may be granted, subject to
revocation and repeal.
Your letter does not suggest any con-
defect and L am left to con-
lecture on what constitutional ground
this act might be challenged. In view
of this and no constitutional objection
at a fair inspection, 1 deem
1t the duty of a prosecuting officer to
repress any doubts of it's constitution
atty and, I advise that this law should
be treated as valid until its unconsti-
is authoritatively declared
by the courts, should that transpire.
To your second question L would say
that undoubtedly the appointing power
has discretion to determine the quail
f1cations of the soldier applicant. Dever
VS.. Humphrey, IS Kan. 759.
y C n -
cised in good faith. and its willful abuse
and wanton disregard of the purposes
of this act would subject the appoint
ing officer to a prosecution under sec
ton 6510 general statutes 1901.
To your third question, I would an
swer- that this law should receive. the
same respect and obedience given to all
laws and county attorneys should in
stitute prosecutions for its violation,
wherever, under all the circumstances
there is a reasonable ground to hope
Tor convictions.
My attention has been called to GER
Jain extraordinary proceedings which
are projected to test the validity of
house bill SO, but in my judgment any
decision under the con-
;titutional question which may be
.aised can only be secured by a crinli-
laI prosecution or in such an unusual
,ase as arose in Goodrich VS.. Mitchell. |