Opinion
No. 4337.
Argued September 7, 1954.
Decided September 30, 1954.
A city solicitor who entered military service during his term of office is entitled when placed on inactive status to reinstatement upon application under the reemployment of veterans statute (Laws 1945, c. 20).
In such case, the city solicitor's reinstatement is not an appointment but rather a resumption of the office he previously held and hence the new mode of appointment (Laws 1949, c. 430, s. 18) requiring confirmation by majority of the council is inapplicable.
PETITION, for mandamus by plaintiff against the defendants, Thomas H. Keenan, mayor of the city of Dover, and T. Casey Moher, seeking to have them quit any interference or intermeddling with his duties as city solicitor of said Dover and to have them yield over to him any documents or information necessary for him to perform the duties of that office.
Moher was first appointed city solicitor of Dover by mayor F. Clyde Keefe with the concurrence of the city council on May 1, 1947, to complete an unexpired term. He was reappointed on July 29, 1948, by the city manager for an indefinite term under the provisions of Laws 1947, c. 385, and served until his recall into military service in July, 1950.
On November 6, 1951, the above law was repealed, the voters of Dover adopting Laws 1949, c. 430, which provides for the appointment of a city solicitor by the mayor, subject to confirmation by a majority vote of the city council. The plaintiff was so appointed to the office on January 2, 1952, and performed its duties until February 28, 1954.
Moher was continuously in military service from July, 1950, to January 19, 1954, when, having honorably completed a tour of active duty, he returned to inactive status in the USAF Reserve.
On February 23, 1954, Moher applied for reinstatement as city solicitor under the provisions of Laws 1945, c. 20. His application was granted by mayor Thomas H. Keenan. Moher took the oath of office and has performed the duties of said office since February 28, 1954.
The matter was submitted to the Superior Court (Sullivan, J.) on an agreed statement of facts.
The Court ordered that the defendant Moher be "declared the city solicitor for the city of Dover . . . for a period of one year beginning February 23, 1954 . . . that at the expiration of said period . . . James M. Jackson shall resume his duties as city solicitor for said city of Dover, if he so desires, and to serve as such until his successor is chosen and qualified provided . . . no other person has been appointed" to the office at the expiration the one year period during which Moher is to serve.
Plaintiff's exception to this decree was reserved and transferred.
James M. Jackson pro se.
T. Casey Moher, pro se, and for defendant Keenan.
The main question to be decided is the applicability and effect of Laws 1945, c. 20, entitled "An Act to Guarantee Reemployment of Veterans by Towns and Other Political Subdivisions of The State."
Section 1 provides that "Each . . . city . . . shall reemploy a veteran . . . who has been placed on inactive status . . . and who, within ninety days after being so made inactive . . . in writing, notifies the treasurer or other fiscal agent of such political subdivision that he desires to be reinstated in the position he held . . . at the time he entered said military service." According to section 2 "Such political subdivision shall, upon receiving the foregoing notification . . . reinstate such veteran in the position he held at the time of entering the military service as of the date when said notification is received . . . Such employment shall be for a period of not less than one year. . . ."
We cannot agree with plaintiff's contention that this law was superseded by Laws 1949, c. 430, setting up a new charter for the city of Dover. It is our opinion that the Legislature intended by Laws 1945, c. 20, to provide a comprehensive and uniform method for the reemployment of veterans by all political subdivisions of the State. This law therefore is to be applied under city charters then existing as well as under any new or amended charters resulting from a referendum or otherwise. Attorney General v. Hunter, 92 N.H. 206, 209.
We are also of the opinion that the provisions of said chapter were intended to apply to the office of city solicitor of Dover.
We attach no determinative significance to the fact that the word "reemploy" has been used and not the words "renominate" "re-appoint" or "re-elect." The intent of the act is to guarantee that the veteran will be placed, for a certain period, in the same or comparable position which he occupied upon entering military service. He is merely to continue where he left off. The word "reemploy" seems to us best adapted to convey that idea. This interpretation is in line with the legislative intent that the Act "shall be liberally construed in favor of a veteran." S. 7.
This Act is similar to and was most likely inspired by the Federal law on the subject (50 U.S.C.A., App., s. 459). Judicial interpretations of the latter would therefore be of some help in formulating our conclusions as to the intended meaning of our Act. See Wiseman v. State, 98 N.H. 393, 397. "In the use of the words `in the employ of any employee,' the Congress intended to broaden the ordinary concept and include within the terms of the Act relationships that would not, under a literal interpretation, come within the classification of employee and employer." Hudspeth v. Standard Oil Co. of N.J., 74 F. Supp. 123, 128. The solicitor of a savings and loan association has been held entitled to the benefits of the Federal act. Heller v. Inter-Boro Savings and Loan Ass'n, 166 F.2d 83.
We do not think that the Legislature intended to limit the provisions of this Act to what plaintiff calls "individuals engaged in regular service or employment." The Act does not state such a purpose but on the contrary expresses an intent that a liberal interpretation will be given to its provisions. In our opinion it was intended to apply to a public officer performing services such as a city solicitor performs. Clark v. Housing Authority, 25 Wn.2d 419. See note, 29 A.L.R. (2d) 1279.
Even though there were changes made in the mode of appointment thereto the position was neither abolished nor discontinued (Laws 1945, c. 20, s. 4) nor its nature changed. See Trusteed Funds, Inc. v. Dacey, 160 F.2d 413, 418; Parbilla v. Velarde, 67 F. Supp. 260. Upon compliance by Moher with the requirements of said chapter 20 the city of Dover was therefore compelled to "reinstate [him] . . . in the position he held at the time of entering the military service as of the date when said notification is received" with at least the same pay and for the same period provided therein.
The defendant Moher entered service with that right guaranteed to him and any city solicitor appointed in the interval took the position subject thereto. Moher is not being appointed to the office of the city solicitor of Dover but rather resuming the office to which he had been previously appointed. Laws 1949, c. 430, s. 18, requiring the confirmation of the mayor's appointee to that position by a majority vote of the council therefore has no application.
The decree of the Trial Court was proper and the order must be
Exception overruled.
All concurred.