Cook

This is an appeal from a judgment denying appellant a writ of mandate requiring the civil service commission of the city of Sacramento to place his name second on the civil service eligible list of said city for the position of fireman.

The facts are not disputed and are substantially as follows : Appellant, with .a number of other applicants, took the civil service examination for the position of fireman of said city, which was held on November 17, 1928. As a result of this examination appellant received an average grade of 94.03 per cent, the same being the second highest grade received by any applicant. Seventeen other applicants, all of whom were honorably discharged soldiers, sailors or marines, passed this examination with a grade higher than seventy per cent. Applicant does not claim that he is an honorably discharged soldier, sailor or marine.

In placing the names of said successful applicant on the eligible list, the civil service board, instead of placing appellant second on the eligible list of persons to fill the position of fireman of said city, placed him eighteenth on said list.

The civil service board claimed that, by reason of certain preferences given…