Jensen v. State, Department of Labor & Industry , 213 Mont. 84 ( 1984 )

MR. JUSTICES SHEEHY and HARRISON,

concurring and dissenting:

We concur with the majority opinion except for the remedy provided Jensen. To that portion of the majority opinion we dissent.

Jensen is the only veteran of seven to come to court to enforce his veteran’s right to preference. The other six veterans, for whatever reasons, did not seek court redress. Each of them, except Jensen, has thereby acquiesced in what the District Court did.

It was Jensen alone who continued the struggle to achieve what was justly his, a veteran’s right to preference. He alone bore the brunt of the battle in court, but he may lose the war if the appointing authority gives the job to some other of the remaining six veterans. We do not see that possible result as fair or required.

Since only Jensen is before this Court, the decision to be made is whether he is entitled to the job over Waltermire. The other veterans, by failing to go to court, have acquiesced in Waltermire’s appointment. Jensen should be awarded the fruits of his trial and given the job, with backpay.