•^rzi^z^izi^^ . OJnrnpU iUauj ^ri^nnl ICtbraty Cornell University Library KFN5760.C69 The civil service law of the state of Ne 3 1924 022 869 840 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022869840 THE OIYIL SEEYICE LAW OF THE STATE OF NEW YORK. A TREATISE UPON THE LAW AS TO APPOINTMENTS TO OFFICE, REMOVALS FROM OFFICE, AND TENURE IN OFFICE, AS EMBODIED IN THE NEW YORK CIVIL SERVICE LAW AND THE "VETERAN" LAWS, Citations to All Adjudicated Cases in New Yokk and Copiotts Rbfekencbs to Analogous Statutes and to Decisions by the Federal Courts and Courts of Other States, and containing THE NEW YOKK STATE CIVIL SEEVICE KTJLES AND CLASSIFICATION. WILLIAM MILLEE COLLIEE, President of the New York State Civil Service Commlsslonfliuthor of " Collier on Bankruptcy;' editor of " The American Bankruptcy Reports," etc. ALBANY, N. Y. MATTHEW SENDEE, 1901, COPTRIOHT, 1901, By WILLIAM MILLER COLLIEB. PREFACE. The New York Civil Service Law is one of the " General Laws "* of the State, not only in name but in its scope. Its provisions affect every citizen. Appointing officers need to familiarize themselves with this law in order to ascertain the limits of their powers, because a transgression of those lim- its renders them personally liable for the compensation of per- sons appointed by them. Disbursing and auditing officers must satisfy themselves that appointments have been made pur- suant to the Civil Service Law and Eules, for a payment by them of compensation to one who does not bring a certificate of the Civil Service Commission to this effect, is a waste of public funds and is recoverable from them and their sureties. The thousands of persons in the public service of the State, and hundreds of thousands in the service of cities and counties, whether they be filling high and responsible places, or are clerks, subordinates, or laborers, find that their title to their positions and their right to compensation are governed by this law; while veterans, numbering scores of thousands, are given by it preferential rights of appointment and safe- guarded rights of tenure. Citizens of the State, in general, have in this law the sole legislative enactment designed to give force and effect to the constitutional provision that the public offices of the State shall be filled after com- petitive examinations designed to test the merit and fitness of applicants, open to all citizens; while taxpayers find that this statute gives to them various remedies for preventing or • Chapter III of the General Laws. See 1 Heydecker's General Laws, 150 (amended to close of the session of 1900). iii IV Peesace. recovering payments made to persons filling public offices, in. violation of its provisions. The law relating to civil service matters is almost wholly statutory or constitutional. Even the few principles, re- lating to appointments, removal and tenure, that are gen- eral, are subject to constitutional provisions and have been greatly modified, and in some cases wholly abrogated by statutes. Tor this reason it has been thought that a dis- cussion of the statute, section by section, with cross-refer- ences to sections having a bearing upon each other, was a better mode of treatment than was a topical or analytical one. The history of each section, its original statutory form and its suc- cessive amendments are first given; then follows a reference to sections or rules or regulations that are correlated, original comment upon the various provisions, and a discussion of them as interpreted in judicial decisions, with explanations as to the effect of subsequent statutory enactments upon those decisions. It is believed that every ITew York case relating to the subject of civil service has been cited, and that, if it is no longer wholly applicable under the present statute, it has been explained. Cases decided under the Civil Service Laws of the United States, Massachusetts and Illinois, which may be, in any pos- sible way, of use to the New York practitioner, have been cited. Eivery New York Civil Service case, down to and including those reported in No. lY of the Advance Sheets of the Official Series, issued on April 27, 1901, has been carefully studied and its doctrine incorporated in the book in the appropriate place. All cases which have been published in the standard law reports of the other States, relating to the matter of civil service, have been carefully studied and cited. This statement is also true of every civil service case which has been reported in the annual reports of the United States Civil Service Com- mission down to and including the last (sixteenth) annual re- port; also of all cases reported or cited in the annual report Peefaoe. V of the New York State Civil Service Conunission down to and including the last (seventeenth) annual report; also of all cases reported or cited in the annual reports of the Chicago Civil Service Commission down to and including the last (sixth) annual report of that commission, which has just issued from the press ; also of all cases reported in the reports of the Massa- chusetts State Civil Service Commission down to date; also of all cases which were embodied in a pamphlet issued by the New York State Civil Service Commission and published by J. B. Lyon & Co. in 1889; also of all cases reported in a pamphlet prepared by the Massachusetts State Civil Service Commission and published in 1898; also of all cases reported or cited in the annual reports of the New Orleans Civil Ser- vice Commission. The text of the Civil Service Law given in the book shows all the amendments which have been made up to the date of the adjournment of the Legislature of 1901, and the recently enacted " Higgins bill," for classifying and grading clerks and other subordinates in the civil service, and also the recently enacted " Ellsworth bill," relating to the rights of veterans, being the only bills of the session approved by the Governor which directly or indirectly affect the Civil Service Law, have been incorporated in the book. Owing to the fact that changes in the statute make decisions which were once correct constructions of the law, no longer ap- plicable, the Table of Cases has been so arranged as to show all the subsequent cases in which each case has been cited, followed or distinguished. Great care has been taken with this, and it is believed it will be of particular value. In like manner, since it is necessary for attorneys to know the exact phraseology of the law at the time a decision is rendered, when that decision relates to matters which are governed almost entirely by statu- tory law, I have included within this book the exact text of the original Civil Service Law, and have shown each of the sue- vi Peeface. cessive amendments to it, with the date it took effect. The Veteran Laws are similarly treated. The Rules and Regulations of the State Civil Service Com- mission appear in the book. The former, it is to be remem- bered, have the force and effect of law. The text of these, as well as the text of the statute, shows all the amendments which have been made down to the time of going to press (May 16, 1901). A large number of forms of the many proceedings which are more and more frequently arising under the Civil Service Law are appended. These are based upon pleadings in cases which have been actually adjudicated, and are prece- dents which can be relied upon. The book is submitted to the profession and to that vast army of public officers and public employees whose powers, rights and duties are measured and determined by the Civil Service Law, with the hope that it may be of service to them in con- struing and applying and enforcing the provisions of that laiw. WM. MILLER COLLIER. Dated, Aubuen, N. Y., June 1, 1901. TABLE OF CONTENTS. Page. PREFACE ili TABLE OF OASES xi THE CIVIL SERVICE LAW. (The " White " Law, Chap. 370, Laws of 1899.) Sec. 1. Short title, civil service legislation 1 2. Definitions 9 3. State Civil Service Commission 17 4. Officers and employees of the Commission 18 5. Rooms and accommodations 19 6. The powers and duties of the Commission 19 7. Duties of public officers 26 8. Unclassified service; classified service 31 9. Rules 38 10. The city service 46 11. Classification 60 12. The exempt class , 61 13. The competitive class 72 14. Exceptions from competitive examinations 88 15. Promotion, transfer, reinstatement, reduction 90 16. The noncompetitive class 104 17. The labor class in cities 104 18. Official roster; reports of appointing officers 105 19. Disbursing officers 107 20. Preferences allowed honorably discharged soldiers, sailors and marines 112 21. Power of removal limited 128 22. Misdemeanor to obstruct right of examination; false represen- tation; Impersonation in examination 177 23. Power of removal; removals not to be influenced by appoint- ments and political affiliations 178 24. Political assessments 213 25. Officers or candidates no;t to promise influence, etc. " Public officer " and " Public employee " deflned 218 26. Attendance of witnesses; fees 222 27. Taxpayer's action 223 28. iSaving clause 224 29. Repeal 224 30. When to take effect 2^ Schedule of laws repealed 225 CONSTITUTIONAL PROVISION 227 ORIGINAL CIVIL SERVICE ACT (1883) with all amendments down to date of its repeal (1899) 245 1. Appointment of Commission 245 2. Duties of Commission 245 3. Report of Commission 247 4. Rooms, accommodations and supplies 248 5. Frauds in examinations 249 vii viii Table of Contents. Sec. Page. 6. Classification 249 7. Appointments; roster; certification to comptroller 249 8. The city service 251 9. Recommendations by public officers 255 10. Political assessments 256 11. Same 256 12. Misdemeanors — penalties 257 13. Removals of persons in the competitive class 258 14. Corrupt infiuence upon, or coercion of political action 258 15. Inquiries to be made by the Commission 2SS 16. Subpoenas by the Commission 259 17. Vacancies in the Commission, how filled 259 SUPPLEMENTARY CIVIL SERVICE STATUTES 260 THE FORMER " BLACK " LAW 260 THE FORMER " VETERAN " LAWS 263 Chapter 312, Laws of 1884 265 Chapter 464, Laws of 1887 265 Chapter 716, Laws of 1894 266 Chapter 821, Laws of 1896 267 Chapter 410, Laws of 1884 269 Chapter 29, Laws of 1886 270 Chapter 717, Laws of 1894 270 Chapter 344, Laws of 1895 270 Chapter 708, Laws of 1887 273 Chapter 583, Laws of 1888 274 Chapter 119, Laws of 1888 274 Chapter 67, Laws of 1890 274 Chapter 577, Laws of 1892 275 Chapter 184, Laws of 1898 275 STATE CIVIL SERVICE RULES 277 Rule I. Definition of terms 277 II. General provisions 279 III. Classification of the State service 280 IV. Appointments to and employment in the classified service 281 V. The exempt class 282 Positions in the exempt class 282 VI. Appointments in the exempt class 295 VII. The competitive class 296 Groups 296 Grades 300 VIII. Appointments to positions in the competitive class. . 301 IX. Applications to enter examinations 305 X. Examinations 306 XI. Eligible lists 308 XII. Term of probation 309 XIII. Season positions 309 XIV. Promotions 310 XV. Transfers 313 XVI. Reinstatement in service 313 XVII. Certificates for promotion, transfer and reinstate- ment 314 XVIII. Definition of the noncompetitive class 314 Positions in the noncompetitive class 315 XIX. Employment in the noncompetitive classi 317 XX. R«ports of appointing officers 318 Table of Contents. ix Page. Rule XXI. The official roster 319 XXII. Certification for payment for services 319 XXIII. Causes for removal 322 XXIV. Admdnlstrative regulations 322 STATE CIVIL SERVICE REGULATIONS 325 Regulation I. Chief examiner 325 II. iSecretary 326 III. Examiners 326 IV. Applications for examinations 328 V. Examinations 330 VI. Marking and grading examination papers 331 VII. Eligible lists 333 VIII. Accounts 336 IX. Information 336 X. Residence and citizenship 337 XI. Commutation for board and lodging 337 XII. Positions classed as laborers 338 FORMS 341 INDEX TO FORMS 401 INDEX 405 TABLE OF CASES. In the subjoined table of cases, an attempt has been made to give not only an index of the cases which are cited in the text of the book but also after each case which is cited, to make reference to all sub- sequent New York cases in which that particular case has been af- firmed, reversed, overruled, limited, criticised, or otherwise cited. No attempt, however, has been made to do this except in so far as prin- ciples relating to the law of Civil Service have been affected by the decisions. The figures appearing in the column at the right-hand side of the page refer to the pages upon which the case is cited in this book. A. Abrams v. Horton, 18 App. Div. 208; cited, 32 Misc. 491, 492 183 Adams, People v. See People v. Adams. Adams, People ex rel. Harper v. See People ex rel. Harper v. Adams. Adams, People ex rel. O'Connor v. See People ex rel. O'Connor v. Adams. Adams, People ex rel. Wardrop v. See People ex rel. Wardrop v. Adams. Adams, Williams v. See Williams v. Adams. Agar, John W., v. John Boyd Thacher, In the Matter of, 21 Misc. 145; 47 N. Y. Supp. 477 13 Aiken, People ex rel., v. Kipley. See People ex rel. Aiken v. Kipley. Aldrich, Bullock v. See Bullock v. Aldrich. Alexander, People ex rel., v. Brady. See People ex rel. Alexander v. Brady. Allaire, Matter of, 83 Misc. 555 82, 132 Alsberge, People ex rel., v. Cram et al. See People ex rel. Als- berge v. Cram et al. Angle, People ex rel. Killeen v. See People ex rel. Killeen v. Angle. Archbold, People ex rel., v. Health Department. See People ex rel. Archbold v. Health Department. Armbruster, People ex rel. Rossney v. See People ex rel. Rossney V. Armbruster. Attorney-General v. Crocker, 138 Mass. 218 221 Attorney-General v. Mayor and Aldermen of Northampton, 143 Mass. 589 131 B, Babcock, People ex rel., v. Murray. See People ex rel. Babcock v. Murray. ' Baird et al.. People ex rel., v. Nixon et al. See People ex rel. Baird et al. V. Nixon et al. Balch, People ex rel., v. Mayor. See People ex rel. Balch v. Mayor. Balcom, People ex rel., v. Mosher et al. See People ex rel. Bal- com V. Mosher et al. Ballou, People ex rel., v. Wendell. See People ex rel. Ballou v. Wendell. xi xii Table of Cases. Barden, People ex rel. Stephens v. See People ex rel. Stephens v. Barden. Barker et al., People ex rel. Conway v. See People ex rel. Conway V. Barker et al. Barker, People ex rel. Haverty v. See People ex rel. Haverty v. Barker. Barkhoof, Hover v. See Hover v. Barkhoof. Barron, People ex rel., v. Scannell. See People ex rel. Barron v. Scannell. Barry, People ex rel., v. Keller et al. See People ex rel. Barry v. Keller et al. Beach V. New York, 32 St. Rep. 939; 10 N. T. Supp. 793; cited, 87 Hun, 298; 34 N. Y. Supp. 347; 68 St. Rep. 272 152 Bean, People ex rel., v. Clausen. See People ex rel. Bean v. Clausen. Bearfield, People v. See People v. Bearfleld. Beck, People ex rel., v. Board of Aldermen of the City of Buffalo. See People ex rel. Beck v. Board of Aldermen of the City of Buffalo. Beebe, Fowler v. See Fowler v. Beebe. Bell V. City of New York, 46 App. Dlv. 195; cited, 32 Misc. 491 184 Bennett, People v. See People v. Bennett. Bennett v. Whitney, 94 N. Y. 302 122 Bergen v. Powell, 30 Hun, 438; afCd., 94 N. Y. 591 182 Bernard, People ex rel. v. Wurster. See People ex rel. Bernard v. Wurster. Berry, White v. See White v. Berry. Board, People v. See People v. Board.' Board of Aldermen of the City of Buffalo, People ex rel. Beck v. See People ex rel. Beck v. Board of Aldermen of the City of Buffalo. Board of Almshouse Commissioners, People ex rel. Hitchcock v. See People ex rel. Hitchcock v. Board of Almshouse Commis- sioners. Board of Civil Service Commissioners of the City of Buffalo, Peo- ple ex rel. Kittenger v. See People ex rel. Kittenger v. Board of Civil Service Commissioners of the City of Buffalo. Board of Commissioners, Newton v. See Newton v. Board of Commissioners. Board of Education of Brooklyn, People ex rel. Curtin v. See People ex rel. Curtin v. Board of Education of Brooklyn. Board of Education of Brooklyn, Douglas v. See Douglas v. Board of Education of Brooklyn. Board of Education of the City of Brooklyn, Ridenour v. See Bidenour v. Board of Education of the City of Brooklyn. Board of Education, McGurn v. See McGurn v. Board of Edu- cation. Board of Education, O'Leary v. See O'Leary v. Board of Edu- cation. Board of Education, People ex rel. Foley v. See People ex rel. Foley V. Board of Education. Board of Education of N. Y., Steinsou v. See Steinson v. Board of Education of N. Y. Board of Education, Steinson v. See Steinson v. Board of Edu- cation. Board of Education, Weidman v. See Weidman v. Board of Edu- cation. Board of Fire Commissioners, People ex rel. Emerick v. See Peo- ple ex rel. Emerick v. Board of Fire Commissioners. Table op Cases. xiii Board of Health of Long Island City, People ex rel. Lamb f. See People ex rel. Lamb v. Board of Health of Long Island City. Board of Health of the City of Troy et al., People ex rel. Hannan V. See People ex rel. Hannan v. Board of Health of the City of Troy. Board of Police, People v. See People v. Board of Police. Board of Public Parks, People ex rel. Thornton v. See People ex rel. Thornton v. Board of Public Parks. Board of Trustees of the Village of Ballston Spa and Patrick H. Heeney, People ex rel. Hoyt v. See People ex rel. Hoyt v. Board of Trustees of the Village of Ballston Spa and Patrick H. Heeney. Board of Trustees of the Village of Cohocton, People ex rel. Wagner v. See People ex rel. Wagner v. Board of Trustees of the Village of Cohocton. Board of Trustees of the Village of Saratoga Springs, People ex rel. Hall v. See People ex rel. Hall v. Board of Trustees of the Village of Saratoga Springs. Board of Water Commissioners v. People, 137 111. 660 13 Boston Board of Police, Ham v. See Ham v. Boston Board of Police. Boston, Phillips v. See Phillips v. Boston. Boyd, People ex rel., v. Hertle et al. See People ex rel. Boyd v. Hertle et al. Brady, People ex rel. Alexander v. See People ex rel. Alexander V. Brady. Brady, People ex rel., v. Brookfield. See People ex rel. Brady v. Brookfleld. Brady, People ex rel. Hart v. See People ex rel. Hart v. Brady. Brady, People ex rel. Kennedy v. See People ex rel. Kennedy v. Brady. Brady, People ex rel., v. O'Brien et al. See People ex rel. Brady V. O'Brien et al. Brady, People ex rel. O'Connor v. See People ex rel. O'Connor V. Brady. Brady, People ex rel. Veiller v. See People ex rel. Veiller v. Brady. Brady, People ex rel. Walsh v. See People ex rel. Walsh v. Brady. Breckenridge, People ex rel., v. Scannell. See People ex rel. Breckenridge v. Scannell. Brenan et al. v. People, 176 111. 620. Reported in Fourth Annual Report, Civil Service Commission, city of Chicago, 1898, p. 596. . 13 Broderick, People ex rel., v. Morton et al. and Easton. See People ex rel. Broderick v. Morton et al. and Easton. Brookfield, Conner v. See Conner v. Brookfield. Brookfield, People ex rel. Brady v. See People ex rel. Brady v. Brookfield. Brookfield, People ex rel. Coggy v. See People ex rel. Coggy v. Brookfleld. Brookfield, People ex rel. Dean v. See People ex rel. Dean v. Brookfield. Brookfield, People ex rel. Thompson v. See People ex rel. Thomp- son V. Brookfield. Brooklyn, Dolan v. See Dolan v. Brooklyn. Brown, John J., v. Civil Service Commissioners 82, 221, 222 BrovTO V. Duane, 60 Hun, 98; 37 St. Rep. 691; 14 N. Y. Supp. 450; cited, 10 Misc. 247; 62 St. Rep. 466; 30 N. Y. Supp. 823; 1 App. Div. 597; 37 N. Y. Supp. 480; 73 St. Rep. 224; 86 Hun, 84; 33 N. Y. Supp. 352; 67 St. Rep. 121 133 Brown v. Russell, 166 Mass. 14 86 Brush, People ex rel. Lewis v. See People ex rel. Lewis v. Brush. liv Table of Cases. Bryant, People ex rel. Shea v. See People ex rel. Sbea v. Bryant. Bryant v. Town of Randolph, 113 N. Y. 70 122 Brymer, People ex rel., v. Gray. See People ex rel. Brymer v. Gray. Buckley, People ex rel., v. Roosevelt. See People ex rel. Buckley V. Roosevelt. Bucknam v. Ruggles, 15 Mass. 180 221 Bullock v. Aldrlch, 1 Gray, 206 -21 Burlingame, People ex rel.. v. Hayward et al. See People ex rel. Burlingame v. Hayward et al. Burby, People ex rel., v. Howland. See People ex rel. Burby v. Howland. Butler V. White, 83 Fed. Rep. 578; rev'd, 171 U. S. 366 98, 192 202, 209 C. Cain V. Warner, as Mayor of the City of Rochester, and Richard C. Cartwright, 45 App. Div. 450 219 Campbell, People v. See People v. Campbell. Carmody v. City of Mount Vernon, 3 App. Div. 347; 38 N. Y. Supp. 314; 73 St. Rep. 752 56 Can- T. Gordon, 82 Fed. Rep. 373 24, 182, 206, 208 Carroll, People ex rel., v. New York City Civil Service Boards et al. See People ex rel. Carroll v. New York City Civil Service Boards et al. Chamberlain, People ex rel., v. Knox et al. See People ex rel. Chamberlain v. Knox et al. Chandler v. Lawrence, 128 Mass. 213 221 Chase, People ex rel., v. Wemple et al. See People ex rel. Chase V. Wemple et al. Chin, People ex rel., v. Poillon. See People ex rel. Chin v. Poillon. Chin and Travers, People ex rel., v. Moore et al. See People ex rel. Chin and Travers v. Moore et al. Chittenden et al. v. Wurster, as JNIavor of the City of Brooklyn et al., 14 App. Div. 483; 43 N. Y. Supp. 1035; 77 St. Rep. 1035; revd., 152 N. Y. 345; 46 N. E. Rep. 857. See 153 N. Y. 664 (reargument). Cited, 153 N. Y. 381; 157 N. Y. 368; 24 Misc. 10; 25 Misc. 619; 43 App. Div. 342; 45 App. Div. 68; 45 App. Div. 537; 158 N. Y. 187; 49 App. Div. 74; 18 App. Div. 166; 45 N. Y. Supp. 775; 15 App. Div. 507; 44 N. Y. Supp. 580; 78 St. Rep. 580; 34 Misc. 292; approved, 157 N. Y. 520 39, 40, 41, 42, 64, 65, 06 67, 68, 70, 169, 170, 171, 223, 227, 238, 239, 240, 241 Church, Matter of, 92 N. Y. 1 14 City of Albany, Hadley v. See Hadley v. City of Albany. City of Albany, Menges v. See Menges v. City of Albany. City of Albany, Walsh v. See Walsh v. City of Albany. City of Brooklyn, Fitzsimmons v. See Fitzsimmons v. City of Brooklyn. City of Brooklyn, Hagan v. See Hagan v. City of Brooklyn. City of Brooklyn, Hogan v. See Hogan v. City of Brooklyn. City of Brooklyn, Langan v. See Langan v. City of Brooklyn. City of Brooklyn, Saw Mill Co. v. See Saw Mill Co. v. City of Brooklyn. City of Brooklyn, Smith v. See Smith v. City of Brooklyn. City of Buffalo, Kip v. See Kip v. City of Buffalo. City of Buffalo et al., Rogers v. See Rogers v. City of Buffalo et ai. City of Mount Vernon, Carmody v. See Carmody v. City of Mount "Vernon. City of Mount Vernon, Hoggett v. See Hoggett v. City of Mount Vernon. Table of Cases. x? City of New York, Bell v. See Bell v. City of New York. City of New York, O'Hara v. See O'Hara v. City of New York. City of New York, Sullivan v. See Sullivan v. City of New Yorlv. ; City of New York, Quintard v. See Quintard v. City of New York. City of Rochester et al.. Peck v. See Peck v. City of Rocliester et al. City of Rochester, Rowley v. See Rowley v. City of Rochester. Civil Service Commissioners, Brown, John J., v. See Brown, John J., v. Civil Service Commissioners. Civil Service Commission, People ex rel. O' Grady v. See People ex rel. O'Grady v. Civil Service Commission. Civil Service Supervisory and Examining Boards of the City of New York, etc., People ex rel. Ryan v. See People ex rel. Ryan V. Civil Service Supervisory and Examining Boards of the City of New York, etc. Clapp, People ex rel., v. Board of Police. See People ex rel. Clapp V. Board of Police. Clark V. Easton, 146 Mass. 93 221 Clausen, People ex rel. Bean v. See People ex rel. Bean v. Clausen. Clausen et al., People ex rel. Haggerty v. See People ex rel. Hag- gerty v. Clausen et al. Clausen, People ex rel. McDonald v. See People ex rel. McDonald V. Clausen. Cline, People ex rel., v. Robb. See People ex rel. Cline v. Robb. Cobb et al.. People ex rel. Van Petten v. See People ex rel. Van Petten v. Cobb et al. Cochrane, People ex rel., v. Tracy. See People ex rel. Cochrane V. Tracy. Coggy, People ex rel., v. Brookfleld. See People ex rel. Coggy v. Brookfleld. Colbert, People ex rel., v. Knox. See People ex rel. Colbert v. Knox. Color, People ex rel. Glaser v. See People ex rel. Glaser v. Coler. Color, People ex rel. Lawson v. See People ex rel. Lawson v. Coler. Color et al.. People ex rel. Schumann v. See People ex rel. Schu-_ mann v. Coler et al. Coler, People ex rel. Speight v. See People ex rel. Speight v. Coler. Coler, People ex rel. Stutzbach v. See People ex rel. Stutzbach v. Coler. Coler, People ex rel. White v. See People ex rel. White v. Coler. Collis, People ex rel. Young v. See People ex rel. Young v. Collis. Commissioners, Connelly v. See Connelly v. Commissioners. Commissioners, People ex rel. Doherty v. See People ex rel. Doherty v. Commissioners. Commissioners of the Almshouse of Newburgh, People ex rel. Milli- ken V. See People ex rel. Milliken v. Commissioners of the Almshouse of Newburgh. Commissioners of Central Park, Matter of, 50 N. Y. 493 59 Commissioners of Charities, Heard v. See Heard v. Commission- ers of Charities. Commissioners of Public Parks, People ex rel. Evans v. See Peo- ple ex rel. Evans v. Commissioners of Public Parks. Common Council, People v. See People v. Common Council. Common Council of Buffalo, People ex rel. Wright v. See People ex rel. Wright v. Common Council of Buffalo. Common Council of the City of Buffalo, Diebold et al., Rogers v. See Rogers v. Common Council of the City of Buffalo, Diebold et al. yvi Table of Cases. Common Council of tbe City of Syracuse and Knauber et al., People ex rel. Drake v. See People ex rel. Drake v. Common Council of the City of Syracuse and Knauber et al. Commonwealth v. Swasey, 133 Mass. 538 221 Commonwealth v. Woods, 11 Mete. 59 221 Comptroller, People v. See People v. Comptroller. Connelly v. Commissioners, 32 Misc. 489 28, 183, 184 Conner v. Brookfleld, 2 App. Div. 299; 37 N. Y. Supp. 718; 73 St. Eep. 392 144 Constable, People ex rel. McCabe v. See People ex rel. McCabe v. Constable. Constable, People ex rel. Williams v. See People ex rel. Williams V. Constable. Conway, People ex rel., v. Barker et al. See People ex rel. Con- way V. Barker et al. Cook V. Mayor, 9 Misc. 338; afCd., 150 N. Y. 578; cited, 49 App. Div. 213; 51 App. Div. 237 126 Cooper V. Smyth, 84 Fed. Rep. 757 206, 208 Corrigan, People ex rel., v. Mayor and Common Council of the City of Brooklyn. See People ex rel. Corrigan v. Mayor and Common Council of the City of Brooklyn. Costello V. Lindblom 77 Coveney, People ex rel., v. Kearney. See People ex rel. Coveney v. Kearney. Cram et al., Marren v. See Marren v. Cram et al. Cram et al., O'Rourke v. See O'Eourke v. Cram et al. Cram et al.. People ex rel. Alsberge v. See People ex rel. Alsberge T. Cram et al. Oram et al.. People ex rel. Ounliffe v. See People ex rel. Cunliffe V. Cram et al. Oram, People ex rel. MoOuUough v. See People ex rel. McCul- lough V. Cram. Cram, People ex rel Percival v. See People ex rel. Pereival v. Gram. Crane, People ex rel., \. Taylor. tSee People ex rel. Crane v. Taylor. Crocker, Attorney-General v. See Attorney-General v. Crocker. Croft, People ex rel., v. Keating. See People ex rel. Croft v. Keating. Cruger, People ex rel. O'Brien v. iSee People ex rel. O'Btlen v. Cruger. Orummey, People ex rel., v. Palmer. See People ex rel. Orummey V. Palmer. Cummings, People ex rel., v. Koch. See People ex rel. Oummings V. Koch. CunlifCe, People ex rel., v. Cram et al. See People ex rel. Cun- liffe V. Cram et al. Curtin, People ex rel., v. Board of Education of Brooklyn. See People ex rel. Curtin v. Board of Education of Brooklyn. Curtis, Ex parte, 16 Otto (106 U. S.), 371 215, 216 Curtis, United States v. See United States v. Curtis. D. Dalton, McDowell v. See McDowell v. Dalton. Dalton et al., People ex rel. Fleming v. See People ex .rel. Flem- ing V. Dalton et al. Dalton et al.. People ex rel. Glldersleeve v. See People ex rel. Gildersleeve v. Dalton et al. Table of Cases. xvii Dalton, People ex rel. Langdon v. See People ex rel. Langdon V. Dalton. Balton, People ex rel. Mead v. See People ex rel. Mead v. Dalton. Dalton, People ex rel. Stone v. See People ex rel. Stone v. Dalton. Dalton, People ex rel. Tate v. See People ex rel. Tate v. Dalton. iDalton, People ex rel. Warschauer v. See People ex rel. Warsci- auer v. Dalton. Dartmouth College v. Woodward, 4 Wheat. 518 185 Davis V. Supreme Lodge, 165 N. Y. 159 59 Dean, People ex rel. v. Brookfield. See People ex rel. Dean v. Brookfield. Deloughry, People ex rel., v. Welles. See People ex rel. Deloughry V. Welles. Demarest v. Mayor, 147 N. Y. 203; 41 N. B. Bep. 405; 69 St. Rep. 505, afCg. 74 Hun, 517; 26 N. Y. Supp. 585; 57 iSt. Bep. 211 124 Denholm, People ex rel., v. Welde. See People ex rel. Denholm v. Welde. Dermody, People ex rel., v. York. See People ex rel. Dermody v. York. Dickels, People ex rel., v. 'Sharks. See People ex rel. Dickels v. iStarks. Diebold et al., Common Council of the City of Buffalo, Rogers v. See Rogers v. Common Council of the City of Buffalo, Diebold et al. Diehl, People ex rel. Wallace v. See People ex rel. Wallace v. Diehl. Dillingham, Nason v. See Nason v. Dillingham. Dillon et al.. People ex rel. Meyers v. See People ex rel. Meyers V. Dillon et al. Doherty, People ex rel., v. Commissioners. iStee People ex rel. Doherty v. Commissioners. Dohring, People v. iSee People v. Dohring. Dolan V. Brooklyn, 55 Hun, 448; 29 St. Bep. 196; 8 N. Y. Supp. 666; affd., without opinion, 129 N. Y. 646; 41 St. Bep. 948 121 Dolan V. Mayor, 68 N. Y. 274; 46 App. Div. 520; 49 App. Div. 211, 157; 33 Misc. 316 123, 125 Donnelly, East Rdver Gas Light Co. v. See East River Gas Light Co. V. Donnelly. Donnelly, People ex rel., v. Moss. See People ex rel. Donnelly v. Moss. Douglas V. Board of Education of Brooklyn, 21 App. Div. 209; 47 N. Y. Supp. 435 128 Drake, People ex rel., v. Knauber et al. See People ex rel. Drake V. Knauber et al. Drake, People ex rel., v. iSutton. iSee People ex rel. Drake v. Sutton. Drake et al.. People ex rel. Ward v. See People ex rel. Ward v. Drake et al. Draper, People ex rel. Wood v. See People ex rel. Wood v. Draper. Duane, Brown v. See Brown v. Duane. DuBois, People ex rel., v. Mellor et al. See People ex rel. DuBois V. Mellor et al. Dudley v. James, 83 Fed. Rep. 345 208 Dunn, People ex rel., v. Ham. See People ex rel. Dunn v. Ham. Durston, People ex rel. Travis v. iSee People ex rel. Travis v. Durston. Dwlnells v. Parsons, 98 Mass. 470 221 Dykman et al., People ex rel. Fellows, Jr., v. See People ex rel. Fellows, Jr., v. Dykman et al. ii xviii Table of Cases. E. Eagan, People ex rel., v. York. iSee People ex rel. Eagan v. York. Earl, People ex rel., v. England. See People ex rel. Earl v. Eng- land. East River Gas L. Co. v. Donnelly, 33 N. Y. 561 122 Easton, Clark v. See Clark v. Baston. Edmundstone, McKenna v. See McKenna v. Edmundstone. Blmendorf, People ex rel. Miller v. 'See People ex rel. Miller v. Elmendorf. Emerick, People ex rel., v. Board of Fire Commissioners. See People ex rel. Emerick v. Board of Fire Commissioners. Emmitt v. Mayor of New York, 38 St. Kep. 907; 128 N. Y. 117, afCg. 38 St. Rep. 355; 13 N. Y. Supp. 887; distgd., 133 N. Y. 233; 44 St. Rep. 669; followed, 46 St. Rep. 130; 18 N. Y. Supp. 904; cited, 38 St. Rep. 806; 14 N. Y. Supp. 785; 46 St. Rep. 862; 19 N. Y. Supp. 6; 69 Hun, 288; 91 Hun, 473; 6 App. Div. 136; 70 Hun, 210; 137 N. Y. 200; 152 N. Y. 233; 61 St. Rep. 672; 18 Misc. 537; 30 N. Y. iSupp. 405; 70 Hun, 209; 15 Misc. 41; 46 App. Div. 521, 522; 51 App. Div. 237 124, 126, 184 Elliott V. Willis, 1 Allen, 461 221 England, People ex rel. Earl v. See People ex rel. Earl v. Eng- land. Ennis, People ex rel. L-innekin v. See People ex rel. Lannekin v. Bnnis. Evans, People ex rel., v. Commissioners of Public ParlfS. See People ex rel. Evans v. Commissioners of Public Parks. Ewell, People ex rel., v. Roberts. See People ex rel. Ewell v. Roberts. F. Fahy, People ex rel., v. York. iSee People ex rel. Fahy v. York. Fallon, People ex rel., v. Wright. iSee People ex rel. Fallon v. Wright. Feitner et al.. People ex rel. Herrick v. See People ex rel. Herrick V. Feituer et al. Feitner et al., People ex rel. Miller v. See People ex rel. Miller v. Feitner et al. Feitner, People ex rel. Nason v. See People ex rel. Nason v. Feitner. Feitner, People ex rel. Quinn v. iSee People ex rel. Quinn v. Feitner. Feitner et al., People ex rel. Strahan v. See People ex rel. Strahan V. Feitner et al. Fellows, People ex rel., v. Dykman. See People ex rel. Fellows v. Dykman. Fire Comrs., People ex rel. Munday v. See People ex rel. Mun- day T. Fire Comrs. Fire Commissioners, People ex rel. Russell v. See People ex reL Russell V. Fire Commissioners. Fire Comrs., People ex rel. Sims v. See People ex rel. Sims v. Fire Comrs. Fire Commissioners, People v. See People v. Fire Commissioners. Fitchburg R. R. Co. v. Grand Junction Co., 1 Allen, 582 221 Fitzslmmons v. City of Brooklyn, 102 N. Y. 536; cited, 46 App. Div 520; 49 App. Div. 211; 51 App. Div. 237; 33 Misc. 316. . 123, 125, 126 Fleming v. Stahl, 83 Fed. Rep. 940 24, 206, 208 Fleming, People ex rel., v. Dalton et al. See People ex rel. Flem- ing V. Dalton et aJ. Table of Cases. xix. riood, People ex rel., v. Gardiuer. See People ex rel. Flood v. Gardiner. Foley, People ex rel., v. Board of Education. See People ex rel. Foley V. Board of Education. FoUett et al., People ex rel. Goetchious v. See People ex rel. Goetchious v. Folletf et al. Fonda, People ex rel., v. Morton et al. See People ex rel. Fonda V. Morton et al. Foreman v. Union & Advertiser Co., 64 St. Kep. 742; 83 Hun, 385; 31 N. Y. Supp. 947 85 Fowler v. Beebe 221 Fox V. Mayor, 11 Misc. 304; 32 N. Y. Supp. 257; 65 St. Rep. 441. . 202 French, People ex rel. Kobb v. See People ex rel. Kobb v. French. French, People ex rel. McAleer v. See People ex rel. McAleer v. French. French, People ex rel. McCarthy v. See People ex rel. McCarthy V. French. French, People ex rel. Ryan v. See People ex rel. Ryan v. French. French, People ex rel. Washburn v. See People ex rel. Washburn V. French. G. Gafeney, Matter of, 84 Hun, 503; 32 N. Y. .Supp. 873; 66 St. Rep. 153 137 Gardiner, People ex rel. Flood v. See People ex rel. Flood v. Gardiner. Gary, Woods v. See Woods v. Gary. Gere et al., People ex rel., v. Whitlock. See People ex rel. Gere et al. V. Whitlock. Gildersleeve, People ex rel., v. Dalton et al. See People ex rel. Gildersleeve v. Dalton et al. Gillespie v. N€w York, 6 Baly, 286; cited, 47 Hun, 16; 30 N. Y. Supp. 406 182 Gilman v. Holt, 4 Pick. (Mass.) 258 221 Gilroy, Sullivan v. See Sullivan v. Gilroy. Gilroy, People ex rel. Uhrie v. See People ex rel. TJhrie v. Gilroy. <}laser. People ex rel., v. Coler. See People ex rel. Glaser v. Coler. Gleason et al.. People ex rel. Lee v. See People ex rel. Lee v. frlpfi son. P^" fll Goedel v. Palmer, 15 App. Div. 86; 44 N. Y. Supp. 301; 78 St. Rep. 303; affd., 152 N. Y. 412, as Bryant v. Palmer, vs^hich see 11 Goetchious, People ex rel. v. FoUett et al. See People ex rel. Goetchious v. FoUett et al. Goetting, People ex rel. Wren v. See People ex rel. Wren v. Goetting. Gordon, Carr v. See Oarr v. Gordon. Gorman, Sargent v. See Sargent v. Gorman. Grace, People v. See People v. Grace. Grady, Matter of, 15 App. Div. 504; 44 N. Y. Supp. 578 124, 144 Grady, People ex rel. Kavanagh v. See People ex rel. Kavanagh V. Grady. Grady, People ex rel., v. Knox. See People ex rel. Grady v. Knox. Grand Junction Co., Fitchburg K. R. Co. v. See Fitchburg R. R. Co. V. Grand Junction Co. Grant, People ex rel. Higgins v. See People ex rel. Higgins v. Grant. Gray, People ex rel. Brymer v. See People ex rel. Brymer v. Gray. XX Table of Cases. Gregory v. Mayor, etc., of N. Y., 22 (St. Eep. 70S; 113 N. Y. 416, affg. 11 St. Rep. 506; 27 W. Dig. 300; cited, 34 St. Rep. 913; 12 N. Y. Supp. 269; 46 St. Rep. 862; 19 N. Y. Supp. 6; 46 App. Dlv. 521 522; 69 Hun, 298; SI Hun, 479; 14 Misc. 566; 69 Hun, 540; 70 Hun, 210; 68 Hun, 56; 2 App. Div. 360; 61 St. Bep. 672; 5 App. Div. 289; 15 Misc. 41; 79 St. Rep. 889; 137 N. Y. 200; 11 Misc. 307; distgd., 133 N. Y. 238; 44 St. Rep. 669; 32 St. Rep. 940; 10 N. Y. iSupp. 793; followed, 128 N. Y. 119; 38 St. Rep. 907; 59 Super. Ct. 494; 39 St. Rep. 385; 15 N. Y. STipp. 562; 35iSt. Rep. 263; 12 N. Y. Supp. 609; 38 St. Rep. 806; 14 N. Y. Supp. 785; 46 St. Rep. 130; 18 N. Y. iSupp. 904 124, 126, 202 Griffin, People ex rel., v. Lathrop. See People ex rel. Griffin v. Lathrop. H. Hadlev v. City of Albany, 33 N. Y. 606; cited, 49 App. Div. 211. . 125 Hagan v. City of Broolilyn, 126 N. Y. 643; cited, 49 App. Dlv. 210, 211, 165; 33 Misc. 315 125, 205 Haggerty, People ex rel., v. Clausen et al. See People ex rel. Haggerty v. Clausen et al. Haebler, Matter of, 149 N. Y. 414; cited, 33 Misc. 360 144 Hall, People ex rel., v. Village of Little Falls. See People ex rel. Hall V. Village of Little Falls. Hall, People ex rel., v. Board of Trustees of the Village of Sara- toga Springs. See People ex rel. Hall v. Boai-d of Trustees of the Village of Saratoga Springs. Ham V. Mayor, 70 N. Y. 459 12: Ham, People ex rel. Dunn v. See People ex rel. Dunn v. Ham. Hannan, People ex rel. v. Board of Health of the City of Troy et al. See People ex rel. Hannan v. Board of Health of the City of Troy et al. Hardy, Thomas A., In re, 17 Misc. 667; 41 N. Y. Supp. 369; cited, 24 Misc. 10; distgd., 34 App. Div. 6 139, 220 Harper, People ex rel., v. Adams. iSee People ex rel. Harper v. Adams. Hart, People ex rel., v. Brady. See People ex rel. Hart v. Brady. Hart, People ex rel., v. La Grange et al. See People ex rel. Hart v. La Grange et al., Commissioners of the Fire Department of the City of New Yorl£. Hartough, People ex rel. v. Scannell. See People ex rel. Hartough v. iScannell. Haverty, People ex rel., v. Earlier et al. 'See People ex rel. Hav- erty v. Barker et al. Hayden, New Haven & Northampton Co. v. See New Haven & Northampton Co. v. Hayden. Hayward et al.. People ex rel. Burlingame v. See People ex rel. Burlingame v. Hayward et al. Health Department, People ex rel. Archbold v. See People ex rel. Archbold v. Health Department. Heard v. Commissioners of Charities, 51 N. Y. Supp. 375 190 Heeney, Patrick H., Board of Trustees of the Village of Ballston Spa, N. Y., People ex rel. Hoyt v. See People ex rel. Hoyt v. Board of Trustees of the Village of Ballston Spa, N. Y. and Patrick H. Heeney. Henry, People ex rel., v. Nostrand. See People ex rel. Henry V. Nostrand. Henry, People ex rel. Ray v. See People ex rel. Ray v. Henry. Heiser v. Mayor, etc., 104 N. Y. 68 15 Herrick, People ex rel., v. Feitner et al. See People ex rel. Her- rick V. Feitner et al. Table of Cases. xxi Hennen, Duncan N., Ex parte, 13 Pet. 235, 239 183, 210 Hertle et al.. People ex rel. Boyd v. See People ex rel. Boyd v. Hertle et al. Hicks, Thompson v. See Thompson v. Hicks. Higgins V. New York, 42 St. Rep. 711; 131 N. Y. 128, revg. 38 St. Rep. 400; 14 N. Y. Supp. 554; cited, 69 Hun, 295; 135 N. Y. 647; 46 St. Rep. 150; 18 N. Y. Supp. 896; distgd., 46 St. Rep. 130; 18 N. Y. Supp. 904; criticised and followed, 39 St. Rep. 519; 15 N. Y. Supp. 168; cited, 46 App. Div. 522, 524, 525; 49 App. Dlv. 218 126, 12T Higgins, People ex rel., v. Grant. See People ex rel. Higgins v. Grant. Hill, People ex rel., v. Mace. See People ex rel. Hill v. Mace. Hitchcock, People ex rel., v. Board of Aims-House Commissioners. See People ex rel. Hitchcock v. Board of Aims-House Commis- sioners. Hoffman, People ex rel., v. Rupp et al. See People ex rel. Hoff- man V. Rupp et al. Hogan V. City of Brooklyn, 126 N. Y. 643 125 Hoggett V. City of Mount Vernon, 36 App. Div. 374 187 HoUey v. Mayor, 59 N. Y. 166 183 Holt, Gilman v. See Gllman v. Holt. Horton, Abrams v. See Abrams v. Horton. Hover v. Barkhoof, 44 N. Y. 113 122 Howell, People ex rel. Murphy v. See People ex rel. Murphy v. Howell. Howland, People ex rel. Burby v. See People ex rel. Burby v. Howland. Howland, Porter v. See Porter v. Howland. Hoyt, People ex rel., v. Board of Trustees of the Village of Ballston Spa, N. Y., and Patrick H. Heeney. See People ex rel. Hoyt v. Board of Trustees of the Village of Ballston Spa, N. Y., and Patrick H. Heeney. Humphrey et al.. People ex rel. Shuster v. See People ex rel. Shuster v. Humphrey et al. J. Jacobus, People ex rel., v. Van Wyck. See People ex rel. Jaco- bus v. Van Wyck. James, Dudley v. See Dudley v. James. Jarvis v. New York, 2 N. Y. Leg. Obs. 396 128 Jones, O'Hara v. See O'Hara v. Jones. Joyce, People ex rel., v. Van Wart. See People ex rel. Joyce v. Van Wart. Jussen, People ex rel., v. Scannell. See People ex rel. Jussen v. Scannell. Justices, People ex rel. Miller v. See People ex rel. Miller v. Justices. K. Kane, Kenny v. See Kenny v. Kane. Kanter, Weber and, Dlndblom v. See Lindblom v. Weber and Kanter. Kastor, People ex rel., v. Kearney. See People ex rel. Kastor v. Kearney. Kavanagh, People ex rel., v. Grady. See People ex rel. Kavanagh V. Grady. Kearney, People ex rel. Coveney v. See People ex rel. Coveney v. Kearney. xxii Table of Cases. Kearney, People ex rel. Kastor v. See People ex rel. Kastor v. Kearney. Keating, People ex rel. Croft v. See People ex rel. Croft v. Keating. Keech, People ex pel., v. Thompson. See People ex rel. Keech v. Thompson. Keenan v. Southworth, 110 Mass. 474 221 Keim V. United States, 33 U. S. Ct. Claims Rep. 174 37, 98 Keller et al.. People ex rel. Barry v. See People ex rel. Barry v. Keller et al. Keller, People ex rel. Leet v. See People ex rel. Leet v. Keller. Keller, People ex rel. Terry v. See People ex rel. Terry v. Keller. Kelly V. Yorl£ et al.. Composing the Board of Police Commission- ers of the City of New Yorli, 42 App. Div. 283; followed, 44 App. Div. 556; cited, 48 App. Div. 450; 58 App. Div. 595 161, 202 Kennedy, People ex rel., v. Brady. See People ex rel. Kennedy v. Brady. Kenny v. Kane, as Commissioner of Sewers, et al., 27 Misc. 680; 59 N. Y. Supp. 555; followed, 32 Misc. Ill; cited, 29 Misc. 601 157 184, 201 Kercheval, Taylor v. See Taylor v. Kercheval. Kerfoot, Mather v. See Mather v. Kerfoot. Keymer, In re, 68 St. Rep. 352; 12 Misc. 615; 34 N. Y. Supp. 447; revd., 69 St. Rep. 276; 89 Hun, 292; 35 N. Y. Supp. 161; latter afCd., 148 N. Y. 219; 42 N. B. Rep. 607; revd. 89 Hun, 292; latter affd. 148 N. Y. 419; cited, 14 App. Div. 483; 153 N. Y. 664; 148 N. Y. 360; 13 App.. Div. 56; 157 N. Y. 868; 24 App. Div. 214; 26 Misc. 522; 12 Misc. 615 66, 71, 236, 240, 241 Kiebrlck, People ex rel., v. Roosevelt. See People ex rel. Kiebrick V. Roosevelt. Killeen, People ex rel., v. Angle et al. See People ex rel. Killeen v. Angle et al. King, Jr., et al., People ex rel. Traphagen v. See People ex rel. Traphagen v. King, Jr., et al. Kip V. City of Buffalo, 123 N. Y. 152; 25 N. E. Rep. 165; 33 St. Rep. 83, affg. 27 St. Rep. 52; 7 N. Y. Supp. 685; cited, 89 Hun, 54. 55 54, 55, 217 Kipley, People ex rel. Allien v. See People ex rel. Allien v. Kipley. Klttenger, People ex rel., v. Board of Civil Service Commissioners of the City of Buffalo. See People ex rel. Klttenger v. Board of Civil Service Commissioners of the City of Buffalo. Kline, Matter of, 17 Misc. 672; 40 N. Y. Supp. 600 144 Knapp, People ex rel. Waterman v. See People ex rel. Water- man V. Knapp. Knauber et al.. People ex rel. Dralie v. See People ex rel. Drake V. Knauber et al. Knauber et al.. People ex rel. Tobin v. See People ex rel. Tobin v. Knauber et al. Knox, People ex rel. Chamberlain v. See People ex rel. Chamber- lain T. Knox et al. Knox, People ex rel. Colbert v. See People ex rol. Colbert v Knox. Knox, People ex rel. Grady v. See People ex rel. Grady v Knox Knox, People ex rel. Leary v. See People ex rel. Leary v Knox' Knox. People ex rel. Lodholz v. See People ex rel. Lodholz v" Knox. Knox, People ex rel. Pettit v. See People ex rel. Pettit v. Knox Knox, People ex rel. Schelpp v. See People ex rel. Schelno v' Knox. ^'^ Table of Cases. xxiii Knox et al., People ex rel. Wilson v. See People ex rel. Wilson V. Knox et al. Koch, People ex rel. Cummings v. See People ex rel. Cummings ' V. Koch. Kopp, People ex rel., v. French. See People ex rel. Kopp v. French. Kruschlnsky, People ex rel., v. Martin. See People ex rel. Kru- schinsky v. Martin. L. La Grange et al., People ex rel. Hart v. See People ex rel. Hart V. La Grange et al. La Grange, People ex rel. Mitchel v. See People ex rel. Mitchel V. La Grange. Lamb, People ex rel., v. Board of Health of Long Island City. See People ex rel. Lamb v. Board of Health of Long Island City. Langan v. City of Brooklyn, 98 N. Y. G23; cited, 46 App. Div. 520. . 124 Langdon v. New York, 6 Abb. N. C. 314; aff'd, 27 Hun, 288; 63 How. Pr. 134; afCd., 92 N. Y. 427; the latter cited in 35 Hun, 25, and 32 Misc. Ill; cited, 134 N. Y. 540; 47 St. Rep. 896 201, 202 Langdon, People ex rel., v. Dalton. See People ex rel. Langdon v. Dalton. Lantry, People ex rel. McDonald v. See People ex rel. McDonald V. Lantry. Lathrop, People ex rel. Griffin v. See People ex rel. Griffin v. Lathrop. Lawrence, Chandler v. See Chandler v. Lawrence. Lawson, People ex rel., v. Coler. See People ex rel. Lawson v. Coler. Leary, People ex rel., v. Knox. See People ex rel. Leary v. Knox. Lee, People ex rel., v. Gleason et al. See People ex rel. Lee v. Gleason et al. Leet, People ex rel., v. Keller. See People ex rel. Leet v. Keller. Lethbridge v. Mayor, 133 N. Y. 232; 44 St. Rep. 669, revg. 59 Super Ct. 486; 15 N. Y. Supp. 562; 39 St. Rep. 385; distgd. 51 App. Div. 227; cited, 32 Misc. Ill; 46 St. Rep. 862; 19 N. Y. Supp. 6; 137 N. Y. 196; 149 N. Y. 225; 80 N. Y. Supp. 406; 70 Hun, 210; 11 Misc. 308; 152 N. Y. 231; cited, 51 App. Div. 230. .. 158 201, 202 Lewis, People ex rel., v. Brush. See People ex rel. Lewis v. Brush. Lindblom, Costello v. See Costello v. Lindblom. Lindblom v. Weber and Kanter 25 Lindblom et al.. People ex rel. Maloney v. See People ex rel. Maloney v. Lindblom et al. Lindblom, People ex rel. Maple v. See People ex rel. Maple v. Lindblom. Linnekin, People ex rel., v. Ennis. See People ex rel. Linnekin v. Bnnis. Little Falls, People v. See People v. Little Falls. Lockwood, People ex rel., v. Trustees of the Village of Saratoga Springs. See People ex rel. Lockwood v. Trustees of the Village of Saratoga Springs. Lodholz, People ex rel., v. Knox. See People ex rel. Lodholz v. Knox. LoefQer, People ex rel. v. See People ex rel. v. Loeffler. Long Island City, Purcell v. See Purcell v. Long Island City. Lorillard v. Town of Monroe, 11 N. Y. 392 121 Lyman, People ex rel. Sweet v. See People ex rel. Sweet v. Lyman, State Commissioner of Excise. Lyman, Pulaski v. See Pulaski v. Lyman. Lyon, People ex rel., v. NicoU. See People ex rel. Lyon v. Nicoll. xxiy Table of Cases. M. Mace, People ex rel. Hill v. See People ex rel. Hill v. Mace. MacLean, Nichols v. See Nichols v. MacLean. Madison, Marbury v. See Marbury v. Madison. Maloney, People ex rel., v. Lindblom et al. See People ex rel. Maloney v. Lindblom et al. Maple, People ex rel., v. Lindblom. See People ex rel. Maple v. Lindblom. Marbury v. Madison, 1 Cranch, 137 210 Marren v. Cram et al.. Commissioners of Doclis, etc., 27 Misc. 158. . 201 Martin, People ex rel. Kruschinsky v. See People ex rel. Kru- schinslfy v. Martin. Martin, People ex rel. Pine v. See People ex rel. Pine v. Martin. Martin, People ex rel., v. Scully. See People ex rel. Martin v. Scully. Mather v. Kerfoot 9, 44, 93 Mayor and Common Council of the City of Brooklyn, People ex rel. Corrigan v. See People ex rel. Corrigan v. Mayor and Common Council of the City of Brooklyn. Mayor and Aldermen of Northampton, Attorney-General v. See Attorney-General v. Mayor and Aldermen of Northampton. Mayor, Cook v. See Cook v. Mayor. Mayor, Demarest v. See Demarest v. Mayor. Mayor, Dolan v. See Dolan v. Mayor. Mayor, Fox v. See Fox v. Mayor. Mayor, Ham v. See Ham v. Mayor. Mayor, etc., Heiser v. See Heiser v. Mayor, etc. Mayor, HoUey v. See Holley v. Mayor. Mayor. Langdon v. See Langdon v. Mayor. Mayor, Lethbridge v. See Lethbridge v. Mayor. Mayor, McVeany v. See McVeany v. Mayor, Mayor, Myers v. See Myers v. Mayor. Mayor of New York, Bmmitt v. See Emmitt v. Mayor of New York. Mayor of New York, Gregory v. See Gregory v. Mayor of New York. Mayor, Olmstead v. See Olmstead v. Mayor. Mayor, People ex rel. Balch v. See People ex rel. Balch v. Mayor. Mayor, People ex rel., v. Nichols. See People ex rel. Mayor v. Nichols. Mayor, People ex rel. Simon v. See People ex rel. Simon v. Mayor. Mayor, Phillips v. See Phillips v. Mayor. Mayor, Rowland v. See Rowland v. Mayor. Mayor, Ryan v. See Ryan v. Mayor. Mayor, Smith v. See Smith v. Mayor. Mayor, Terhune v. See Terhune v. Mayor. Mayor, Van Valkenburgh v. See Van Valkenburgh v. Mayor. Mayor, Wardlaw v. See Wardlaw v. Mayor. Mayor, Wood v. See Wood v. Mayor. McAleer, People ex rel., v. French. See People ex rel. McAleer v. French. McBride v. City of New York, 56 App. Div. 520 27, 28, 77, 89, 111 McCarthy, People ex rel., v. French. See People ex rel. McCarthy V. French. ^IcCabe, People ex rel., v. Constable. See People ex rel. McCabe V. Constable. McCarthy, People ex rel., v. Shea. See People ex rel. McCarthy V. Shea. Table of Cases. xit McCartney, People ex rel. Schumann v. See People ex rel. Schu- mann V. McCartney. McCartney et al., People ex rel. Throckmorton v. See People ex rel. Throckmorton v. McCartney et al. McClelland, People ex rel., v. Roberts. See People ex rel. McClel- land V. Roberts. McCloskey, Matter of, v. Willis, as Commissioner of City Works of the City of Brooklyn, 15 App. Div. 594; 44 N. Y. Supp. 682. . 159, 160 McCoUum, People ex rel., v. Scannell. See People ex rel. McCollum V. Scannell. McCuUough, People ex rel. v. Cram. See People ex rel. Mc- Cullough V. Cram. McDonald, Matter of, 34 App. Div. 512; cited, 27 Misc. 160; 27 Misc. 662; 28 Misc. 582; 48 App. Div. 132; distgd., 49 App. Div. 124 187, 138 McDonald, Matter of, 16 Misc. 304; 39 N. T. Supp. 367 144 McDonald, People ex rel., v. Clausen. See People ex rel. McDonald V. Clausen. McDonald, People ex rel., v. Lantry. See People ex rel. McDonald V. Lantry. McDovrell V. Dalton, 33 Misc. 359 138 McGurn v. Board of Education, 133 III. 122 13 McKenna v. Bdmundstone, 91. N. Y. 231 59 McManus v. City of Brooklyn, 5 N. Y. Supp. 424; aftd., under the title of Hagan v. City of Brooklyn, 126 N. Y. 643; cited, 49 App. Div. 155, 210 125, 205 McMorrow, People ex rel., v. Roosevelt. See People ex rel. Mc- Morrow v. Roosevelt. McNiece v. Sohmer, 29 Misc. 238 31 McVeany v. Mayor, 80 N. Y. 185; cited, 46 App. Div. 520; 49 id. 156, 157, 211; 33 Misc. 316 123, 125 Mead, People ex rel., v. Dalton. See People ex rel. Mead v. Dalton. Mehegan, People ex rel., v. Scannell. See People ex rel. Mehegan V. Scannell. Mellor et al., People ex rel. DuBois v. See People ex rel. DuBois V. Mellor et al. Menges v. City of Albany, 56 N. Y. 374 231 Merritt, People ex rel., v. New York City Civil Service Board et al. See People ex rel. Merritt v. New York City Civil Service Board et al. Meyers, People ex rel., v. Dillon et al. See People ex rel. Meyers V. Dillon et al. Miller, Morris S., Matter of the Petition of Right by 243 Miller, People ex rel., v. Elmendorf. See People ex rel. Miller v. Blmendorf. Miller, People ex rel., v. Peitner et al. See People ex rel. Miller v. Feitner et al. Miller, People ex rel., v. Justices. See People ex rel. Miller v. Justices. Miller v. Warner, Police Commissioner of Rochester, 42 App. Div. 208 151, 219 Miller, People ex rel., v. Wurster. See People ex rel. Miller v. Wurster. Mllliken, People ex rel., v. Comrs. of the Almshouse of Newburgh. See People ex rel. Milliken v. Comrs. of the Almshouse of Newburgh. Mitchel, People ex rel., v. La Grange. See People ex rel. Mitchel V. La Grange. Moffett, Page v. See Page v. Mofifett. xxvi Table of Cases. Moloney, People ex rel., v. Waring, Jr. iSee People ex rel. Moloney V. Waring, Jr. Moore et al.. People ex rel. Chin aad Travers v. See People ex rel. Chin and Ti-avers v. Moore. Moreley v. New York, 35 St. Rep. 262 128 Morgan v. Nunn, 84 Fed. Rep. 551 24, 181, 207, 208 Morton et al.. People ex rel. Fionda v. See People ex rel. Fonda v. Morton et al. Morton et al.. People ex rel. Broderlck v. See People ex rel. Brod- erick v. Morton et al. Mosher et al., Peoiple ex rel. Balcom v. iSee People ex rel. Balcom V. Mosher et al. Mosher, People ex rel., v. Stowell. See People ex rel. Mosher v. Stowell. Moss, People ex rel. Donnelly v. See People ex rel. Donnelly v. Moss. Mullen V. New York, 34 St. Biep. 913; 12 N. Y. Supp. 269; cited, 38 St. Rep. 806; 14 N. Y. Supp. 785; followed, 38 St. Rep. 356; 13 N. Y. Supp. 887 184 Mullen, People ex rel., v. Sheffield et al. See People ex rel. Mullen V. Sheffield et al. Munday, People ex rel., v. Fire Comrs. See People ex rel. Mun- day V. Fire Comrs. Municipal Civil Service Commission, People ex rel. SUvey v. See People ex rel. Silvey v. Municipal Civil iService Commission. Murphy, People ex rel., v. Howell. See People ex rel. Murphy v. Howell. Murray, Matter of, 18 App. Dlv. 337; aflCd., 155 N. Y. 628; cited, 49 App. Div. 129 146 Murray, People ex rel. Babcock v. See People ex rel. Babeock v. Murray. Myers v. Mayor, 64 Hun, 635; 46 St. Rep. 130; 18 N. Y. Supp. 904. . 128 Myers, People ex rel. Woltman v. .See People ex rel. Woltman V. Myers. N. Nason v. Dillingham, 15 Mass. 170 221 Nason, People ex rel., v. Feitner. See People ex rel. Nason v. Feitner. Neubrand, People ex rel. Requa v. See People ex rel. Requa v. Neubrand. New York, Beach v. iSee Beach v. New York. New York, Gillespie v. See Gillespie v. New York. New York, Jarvis v. See Jarvis v. New York. New York, Langdon v. See Langdon v. New York. New York Law School, People ex rel. O'Sulllvan v. See People ex rel. O'SuUivan v. New York Law School. New York, Lethbridge v. See Lethbridge v. New York. New Haven & Northampton Co. v. Hayden, 117 Mass. 433 221 New York, Moreley v. See Moreley v. New York. New York, Mullen v. See Mullen v. New York. New York, Phelan v. ISee Phelan v. New York. New York, Riley v. See Riley v. New York. New York City Civil Service Boards et al.. People ex rel. Carroll v. See People ex rel. Carroll v. New York City Civil Service Boards et al. Nevrton v. Board of Commissioners, 100 U. S. 548 184 New York City Civil 'Service Board et al.. People ex rel. Merrltt v. See People ex rel. Merrltt v. New York City Civil Service Board , et aL Table of Cases. xxyii Newton, United States v. See United iStates v. Newton. Nieoll, People ex rel. Lyon v. See People ex rel. Lyon v. Nieoll. Nixon et al., People ex rel. Baird et al. v. See People ex rel. Baird et al. V. Nixon et al. Nichols V. Mac Lean, 101 N. X. 526; cited, 49 App. DiT. 211; 49 App. Diy. 156; 33 Misc. 316 125 Nichols, People ex rel. Mayor v. See People ex rel. Mayor v. Nichols. Nostrand, People ex rel. Henry v. See People ex rel. Henry v. Nostrand. Nowell V. Wright, 3 Allen, 166 222 Nunn, Morgan v. See Morgan v. Nunn. Nutall V. Simis, Jr., et al., 31 App. Div. 503; 52 N. Y. Supp. 308; affg. 22 Misc. 19; 47 N. ¥. Supp. 1097 45, 122, 131, 145, 14T Nutall, People ex rel., v. Simis. See People ex rel. Nutall v. Simis. 0. O'Brien, People ex rel., v. Cniger. See People ex rel. O'Brien v. Oruger. O'Brien et al.. People ex rel. Brady v. See People ex rel. Brady V. O'Brien et al. O'Brien, People ex rel., v. Porter. See People ex rel. O'Brien v. Porter. O'Brien, People ex rel., v. Scannell. See People ex rel. O'Brien v. Scannell. O'Connor, People ex rel., v. Adams. See People ex rel. O'Connor v. Adams. O'Connor, People ex rel., v. Brady. See People ex rel. O'Connor v. Brady. O'Grady, People ex rel., v. Civil Service Commission. See People ex rel. O'Grady v. Civil Service Commission. O'Hara v. City of New York, 46 App. Div. 518, affg. 28 Misc. 258. distgd., 49 App. Div. 208; cited, 49 App. Div. 212 . . 124, 125, 126, 12T O'Hara v. Jones, 161 Mass. 391 221 O'Leary v. Board of Education, 93 N. Y. 1, revg. 9 Daly, 161; 10 Misc. 152 121 Olmstead v. Mayor, 42 N. Y. Super. Ct. 481; cited, 51 App. Div. 238, 220 O'Neill, People ex rel., v. Roosevelt. See People ex rel. O'Neill v. Roosevelt. Opinion of the Justices, In re, 138 Mass. 601 217 O'Rourke v. Oram et al., as Commissioners of Docks, etc., 27 Misc. 158 201 Osterhoudt v. Rigney et al., 98 N. Y. 222 84 Ostrander, In re, 12 Misc. 476; 34 N. Y. Supp. 295; 68 St. Rep. 599; affd., 146 N. Y. 404; cited, 14 Misc. 360; also, in 152 N. Y. 217; 157 N. Y. 368; 25 Misc. 619 66, 167, 168, 170, 220 O' Sullivan, People ex rel., v. New York Law School. See People ex rel. O'Sullivan v. New York Law School. Page et al. v. Moffett, 85 Fed. Rep. 38 24, 208, 210 Palmer, Goedel v. See Goedel v. Palmer. Palmer, People ex rel. Orummey v. See People ex rel. Crummey v. Palmer. Palmer, People ex rel. Tregaskis v. See People ex rel. Tregaskis v. Palmer. Palmer, People ex rel. Vanderhoff v. See People ex rel. Vander- hofC V. Palmer. xsviii Table of Cases. Parsons, Dwinells t. See Dwinells v. Parsons. Patten, People ex rel., v. Waring. See People ex rel. Patten v. Waring. Pease v. Smith, 24 Picls. 122 221 Peck y. City of Rocliester et al., 18 St. Rep. 244; 3 N. Y. Supp. 872. 224 People, Brenan et al. v. See Brenan et al. t. People. People ex rel. Aiken v. Kipley, 171 111. 44 22, 25, 29, 34, 35, 60 People ex rel. Alexander v. Brady, 50 App. Dlv. 372 166 People ex rel. Alsberge v. Cram et al., as Commissioners of Docks and Ferries of New York City, 28 Misc. 321 31 People ex rel. Archbold v. Health Department, 24 Week. Dig. 197 189, 190 People ex rel. Babcock v. Murray, 70 N. Y. 521 130 People ex rel. Baird et al. v. Nixon et al., 158 N. Y. 221; afCg. 32 App. Div. 513; 53 N. Y. iSupp. 230 148, 191 People ex rel. Balch v. Jlayor, 39 St. Rep. 11; 14 N. Y. Supp. 455. . 116 People ex rel. Balcom v. Mosher et al.. Constituting the Board of Street Commissioners of the City of Binghamton, 28 Misc. 1; 58 N. Y. Supp. 1097; revd., 45 App. Div. 68; latter afCd., 163 N. Y. 32; cited, 163 N. Y. 23; 164 N. Y. 69 . . 72. 75, 114, 119, 231, 233, 234, 236 People ex rel. Barron v. Scannell, 30 Misc. 328 56 People ex rel. Barry v. Keller et al., Commissioners of Public Charities of the City of New York, 30 ilisc. 52 131, 221 People ex rel. Bean v. Clausen, 50 App. Div. 324 135 People ex rel. Beck v. Board of Aldermen of the City of Buffalo, 18 Misc. 533; 42 N. Y. iSupp. 545 46, 81 People ex rel. Bernard v. Wurster, 89 Hun, 5 160 People ex rel. Boyd v. Hertle et al., as Commissioners of Accounts, 28 Misc. 37; affd., 46 App. Div. 505; distgd., 49 App. Div. 75 145 190, 191 People ex rel. Brady v. Brookfield, 6 App. Div. 445; 39 N. Y. Supp. 677; cited, 12 App. Div. 542 166 People ex rel. Brady v. O'Brien et al., as Dock Commissioners of the City of New York, Constituting the Board of the Department of Docks of the City of New York, 9 App. Div. 428; 41 N. Y. Supp. 529; 75 St. Rep. 920 166, 168 People ex rel. Breckenridge v. .Scannell, as Fire Commissioner, etc., 160 N. Y. 103, affg. 40 App. Div. 633; affg. 25 Misc. 619; 56 N. Y. Supp. 117; followed, 44 App. Div. 556; distgd., 48 App. Div. 69; cited, 49 App. Div. 123; 29 Misc. 701; 48 App. Div. 73, 445, 450; 58 App. Div. 595 144, 163, 164, 170, 202 People ex rel. Broderick v. Morton et al., 24 App. Div. 568; revd., on various grounds in 156 N. Y. 136 . . 122, 133, 134, 148, 160, 210 People ex rel. Brymer v. Gray, 32 App. Div. 458; 53 N. Y. Supp. 274, revg. 23 Misc. 602; 51 N. Y. Supp. 1087 ITO People ex rel. Buckley v. Roosevelt, 19 App. Div. 431; 46 N. Y. Supp. 517 82 People ex rel. Burby v. Rowland, 155 N. Y. 270, 280 231 People ex rel. Burlingame v. Hayward et al.. Constituting the Board of Education of the Warsaw Union Free School District, and as Trustees of Warsaw Union /School, 19 App. Dlv. 46; 46 N. Y. Supp. 1083; followed, 43 App. Div. 613 115 People ex rel. Carroll v. New York City Civil Service Boards et al., 5 App. Div. 164; 39 N. Y. Supp. 75; followed, 13 App. Div. 309. 21, 85 People ex rel. Chamberlain v. Knox et al.. Composing the Munici- pal Civil Service Commission of the City of New York, 45 App. Dlv. 518; distgd., 49 App. Dlv. 126 27, 65 People ex rel. Chase v. Wemple et al., 144 N. Y. 478 84 People ex rel. Chin v. Poillon, 16 Abb. N. C. 119 118 Table of Cases. xxix People ex rel. Ohin and Travers v. Moore et al., 16 Abb. N. C. 119; 39 Hun, 478 118 People ex rel. Clapp v. Board of Police, 72 N. Y. 415; 5 Hun, 457; cited, 49 Hun, 366; 17 St. Rep. 586; 2 N. Y. Supp. 148; 25 St. K«p. 939; 5 N. Y. Supp. 424; 49 App. Div. 211 199, 205 People ex rel. Cline v. Robb, 126 N. Y. 180 182 People ex rel. Oochrane v. Tracy, 35 App. Div. 265; 54 N. Y. Supp. 1070 131, 168 People ex rel. Coggy v. Brookfield, 13 Misc. 566; 34 N. Y. Supp. 674; 68 St. Eep. 403 147 People ex rel. Colbert v. Knox, 57 App. Div. 155 86, 92 People ex rel. Conway v. Barker et al.. Commissioners of Taxes and Assessments, 14 Misc. 360; 70 iSt. Rep. 523; 35 N. Y. Supp. 727 63, 64, 72, 167, 176 People ex rel. Corrlgan v. Mayor and Common Council of the City of Brooklyn, 149 N. Y. 215, revg. 91 Hun, 308; cited, 17 Misc. 652; 13 App. I)iv. 400; 18 App. Div. 412; 19 App. Div. 567; 19 Misc. 671; 20 Misc. 217; 30 App. Div. 135; 26 Misc. 522; 36 App. Div. 518; 42 App. Div. 283; 27 Misc. 158; followed, 44 App. Div. 556; 48 App. Div. 449; 49 App. Div. 124; cited, 49 App. Div. 212; 13 App. Div. 402; 79 St. Rep. 940; 19 Misc. 672; 20 Misc. 190; 79 St. Rep. 47; 58 App. Div. 595 139, 144, 154, 158, 182, 201, 202 People ex rel. Corsa v. Waring, 7 App. Div. 247; 74 St. Rep. 646; 40 N. Y. Supp. 35; declared inapplicable, 27 Misc. 153 145 People ex rel. Coveney v. Kearny, as Commissioner of Public Buildings, 44 App. Div. 449; 161 N. Y. 648; cited, 46 App. Div. 507; 49 App. Div. 157; 58 App. Div. 595 142, 145 People ex rel. Crane v. Taylor, County Treasurer, 17 Misc. 505; 40 N. Y. Supp. 321 11, 69 People ex rel. Croft v. Keating, 49 App. Div. 123 138, 144, 163 People ex rel. Crummey v. Palmer, as Comptroller of the City of Brooklyn, 152 N. Y. 217; 46 N. E. Rep. 328, revg. 9 App. Div. 58; cited, 153 N. Y. 664; 157 N. Y. 368; 24 Misc. 10; 25 Misc. 619; approved, 157 N. Y. 520; cited, 152 N. Y. 360; 34 Misc. 293 67, 70 169, 170, 171, 176 People ex rel. Oummings v. Koch, 2 St. Rep. 110; 102 N. Y. 650; cited, 54 Hun, 608; 28 iSt. Rep. 246; 15 Misc. 14; 87 Hun, 298; 8 N. Y. Supp. 104 , 190 People ex rel. CunlifCe v. Cram et al.. Commissioners of Docks of the City of New York, 34 App. Div. 313; 54 N. Y. Supp. (88 St. Rep.) 355 113, 147 People ex rel. Curtin v. Board of Education of Brooklyn, 41 St. Rep. 791; 16 N. Y. Supp. 676 144 People ex rel. Dean v. Brookfield, 1 App. Div. 68; 37 N. Y. Supp. 107; 72 St. Rep. 153 190 People ex rel. Deloughry v. Welles, 5 App. Div. 523, 526; cited, 53 App. Div. 283, 339 200 People ex rel. Denholm v. Welde, as Commissioner of Jurors, 27 Misc. 697; 59 N. Y. Supp. 474; followed, 28 Misc. 582 17 People ex rel. Dermody v. York, 50 App. Div. 359; cited, 52 App. Div. 295; 56 App. Div. 53 211 People ex rel. Dickels v. Starks et al., 33 Hun, 384 198 People ex rel. Doherty v. Commissioners, 84 Hun, 66; cited, 53 App. Div. 339 212 People ex rel. Donnelly v. Moss, 50 App. Div. 308 198 People ex rel. Drake v. Knauber et al.. Constituting the Civil Service Board of the City of Syracuse, 26 Misc. 522; 57 N. Y. Supp. 617; revd., 43 App. Div. 342; 60 N. Y. iSupp. 298; latter affd., 163 N. Y. 23 135, 228, 220 yTT Table of Cases. People ex rel. Drake v. Sutton, 88 Hun, 173; 34 N. Y. Supp. 487; 68 St. Rep. 494; cited, 14 Misc. 367; 9 App. Div. 60; 9 App. Diy. 253 142, 146, 176 People ex rel. DuBois v. Mellor et al 30 People ex rel. Dunn v. Ham. 32 Misc. 517 191 People ex rel. Eagan v. York, 53 App. Div. 336 211, 212 People ex rel. Earl v. England, 16 App. Div. 97; 45 N. Y. Supp. 12; 79 St. Rep. 12; cited, 24 Misc. 10; 31 App. Div. 523; dlstgd., 34 App. Div. 6; 79 St. Rep. 1147 148, 149, 150 People ex rel. Evans v. Commissioners of Public Parks, 60 How. Pr. 130; cited, 133 N. Y. 238; 44 St. Rep. 669 202 People ex rel. Ewell v. Roberts, Comptroller, 10 Misc. 764; 66 St. Rep. 74; 32 N. Y. Supp. 711 107. 110 People ex rel. Emerlck v. Board of Fire Commissioners, Sij N. Y. 149 189 People ex rel. Paliy v. York, 49 App. Div. 173 1">2, 203 People ex rel. Fallon v. Wright, as Commissioner of Corrections of the City of New York, 7 App. Div. 185; 40 N. Y. Supp. L'S."); afCd., 150 N. Y. 444, 447; cited, 15 App. Div. 272 16, 165, 167 People ex rel. Fellows v. Dykman et al., Constituting the Munic- ipal Civil Service Commission of the City of New York, 29 Misc. 234; 60 N. Y. Supp. 290 112 People ex rel. Fleming v. Dalton, Commissioner of Water Supply of the City of New York, and James MofEett, Deputy Commis- sioner of Water Supply of the City of New York, Borough of Brooklyn, 24 Misc. 88; 34 App. Div. 627; revd., 1."j8 N. Y. 175; 52 N. E. Rep. 1113; cited, 27 Misc. 734; 158 N. Y. 187; 27 Misc. 153; distgd., 27 Misc. 158; cited, 27 Misc. 160; 40 App. Div. 65; ex- plained, 27 Misc. 662; cited, 159 N. Y. 235; 28 Misc. 501; followed, 29 Misc. Ifi4; 44 App. Div. 556; cited, 48 App. Div. 132; 49 App. Div. 104; 49 App. Div. 240; 164 N. Y. 66; 33 Misc. 360 51, 52, 146 People ex rel. Flood v. Gardiner, District Attorney of New Yorli County, 33 App. Div. 204; 53 N. Y. Supp. 451; revd., 157 N. Y. 520 173, 174 People ex rel. Foley v. Board of Education, 84 Hun, 417; 32 N. Y. Supp. 377; 65 St. Rep. 583 154 People ex rel. Fonda v. Morton et al., 148 N. Y. 156; held inappli- cable in 19 App. Div. 567; considered, 42 App. Div. 300; cited, 15 App. Div. 272; 153 N. Y. 113; 157 N. Y. 495; 12 App. Div. 536; 35 App. Div. 141; 158 N. Y. 221; 15 Misc. 423; 16 App. Div. 102; 2 App. Div. 300; 2 App. Div. 360; 5 App. Div. 289; 79 St. Rep. 889; 12 App. Div. 542 165 People ex rel. Gere et al. v. Whitlock, 92 N. Y. 191; cited, 31 Hun, 518; ir>2 N. Y. 81; 52 X. Y. Super. Ct. 521; 39 Hun, 224; 113 N. Y. 110; followed, 47 Hun, 16 184 People ex rel. Glaser v. Coler. Reported in Report of New York Civil Service Commission, 1898, p. 561 69 People ex rel. Gildersleeve v. Dalton, as Commissioner of Water Supply of the City of New York, and James MofCett, 44 App. Div. 556; distgd., 51 App. Div. 227; cited, 51 App. Div. 230 202 People ex rel. Goetchious v. Follett et al.. Constituting the Board of Trustees of the Village of Seneca Falls, 24 Misc. 510 l.!."), 152 People ex rel. Grady v. Knox, 54 App. Div. 334 57, 58 People ex rel. Griffin v. Lathrop, 142 N. Y. 113; 36 N. K. Rep. 805; 58 St. Rep. 633, affg. 54 St. Rep. 371; 24 N. Y. Supp. 754; cited, 148 N. Y. 161; 16 App. Div. 101; 84 Hun, 420; 1 App. Div. 597. . 114 183 People ex rel. Haggerty v. Clausen et al.. Commissioners of Parks in the City of New York, 20 Misc. 701 100 People ex rel. Hall v. Board of Trustees of the Village of Saratoga Springs, 35 App. Div. 141 Hg Table op Cases. xxxi [People ex rel. Hall v. Village of Little Falls, 29 St. Rep. 723; 8 N. Y. Supp. 512; 4 Silv. 539; cited, 57 Hun, 364; 32 St. Rep. 129; 10 N. Y. Supp. 587; 39 St. Rep. 768; 21 Civ. Pro. Ill; 15 N. Y. Supp. 305; 148 N. Y. 161 120 People ex rel. Hannan v. Board of Health of the City of Troy et al., 15 App. Div. 272; 44 N. Y. Supp. 597; 78 St. Rep. 597; revd., 153 N. Y. 513; 47 N. E. Rep. 785 142, 153, 154 People ex rel. Harper v. Adams, 46 St. Rep. 150; 18 N. Y. Supp. 896. 133 People ex rel. Hart v. Brady, 58 App. Div. 219 195 People ex rel. Hart v. La Grange et al.. Commissioners of the Fire Department of the City of New York, 7 App. Div. 311; 40 N. Y. Supp. 1026; 75 St. Rep. 413; cited, 49 App. Div. 212 162 People ex rel. Hartough v. Scannell, 48 App. Div. 445 162 People ex rel. Haverty v. Barker et al., Constituting the Board of Taxes and Assessment of the City of New York, 1 App. Div. 532; 73 St. Rep. 172; 37 N. Y. Supp. 555; affd., 149 N. Y. 607.. 154, 167 People ex rel. Henry v. Nostrand, 46 N. Y. 381 220 People ex rel. Herrick v. Feitner et al., 27 Misc. 153 146, 186 People ex rel. Hlggins v. Grant, 37 St. Rep. 629; 128 N. Y. 620; 12 Daly, 294; 13 N. Y. iSupp. 676 194 People ex rel. Hill v. Mace, 84 Hun, 344; 32 N. Y. Supp. 335; 65 St. Rep. 494 , . 154, 155 People ex rel. Hitchcock v. Board of Almshouse Commissioners. . 81 People ex rel. Hoffman v. Rupp et al.. Constituting the Board of Police of the City of Buffalo, New York, 90 Hun, 145; 35 N. Y. Supp. 349; 69 St. Rep. 736; followed, 9 App. Div. 252; also, 17 Misc. 652, 654; criticised, 19 App. Div. 567; considered and ques- tioned, 19 Misc. 671; cited, 17 Misc. 654; 9 App. Div. 254; 19 Misc. 673 139, 140, 141 People ex rel. Hoyt v. Board of Trustees of the Village of Ballston Spa, N. Y., and Patrick H. Heeney, 19 Misc. 671; on appeal, 19 App. Div. 567; cited, 26 Misc. 522; 78 St. Rep. 471; 44 N. Y. Supp. 471 119, 120, 132, 139, 140, 141, 144 People ex rel. Jacobus v. Van Wyck, as Mayor of the City of New York, 157 N. Y. 495, affg. 33 App. Div. 318; 53 N. Y. Supp. 914; cited, 158 N. Y. 221; 38 App. Div. 615; 42 App. Div. 283; 48 App. Div. 450; 49 App. Div. 73 118, 147, 148, 188, 191 People ex rel. Joyce v. Van Wart, 36 App. Div. 518 160 People ex rel. Jussen v. Scannell, 51 App. Div. 360 172 People ex rel. Kastor v. Kearney, 164 N. Y. 64, afCg. 49 App. Div. 125 36 People ex rel. Kavanagh v. Grady, 18 App. Div. 332; 46 N. Y. Supp. 8 54 People ex rel. Keech v. Thompson, 94 N. Y. 451, afEg. 26 Hun, 28; applied, 32 St. Rep. 437; 10 N. Y. Supp. 815; cited, 126 N. Y. 183; 37 St. Rep. 8; followed, 58 Hun, 154; 33 St. Rep. 974; 11 N. Y. Supp. 559; 84 Hun, 80; 84 Hun, 347; 15 Misc. 13, 423; 1 App. Div. 339; 2 App. Div. 445; 17 App. Div. 489; 13 Misc. 10, 25; 17 App. Div. 484; cited, 49 App. Div. 210; 50 App. Div. 375; 58 App. Div. 221; 166 N. Y. 48, 49 194, 195, 196, 197, 200 People ex rel. Kennedy v. Brady, 53 App. Div. 279; revd., 166 N. Y. 44 193, 195, 197, 200, 204, 205 People ex rel. Kiebrick v. Roosevelt, 1 App. Div. 577; cited 50 App. Div. 360; 56 App. Div. 53 211 I'eople ex rel. KiUeen v. Angle, Secretary of the New York Civil Service Commission, and John Jay and Henry A. Richmond, Comprising the New York Civil Service Commission, 109 N. Y. 564; 16 St. Rep. 647, afifg. 47 Hun, 183; 14 St. Rep. 199; cited, Rogers v. Buffalo, 2 N. Y. Supp. 326; 3 N. Y. Supp. 671; also In People v. Durston, 3 N. Y. Supp. 522; also in 89 Hun, 297; xxxii Table of Cases. also in 13 Misc. 448; also in 148 N. T. 360; 121 N. Y. 104; 30 St. Rep. 772; 58 Hun, 310; 34 St. Rep. 511; 11 N. Y. Supp. 792; 19 Civ. Pro. 403; 47 St. Rep. 826; 3 N. Y. Supp. 674; approved, 129 N. Y. 329; 38 St. Rep. 933; 142 N. Y. 104; 23 N. Y. Supp. 801; 66 Hun, 179; 138 N. Y. 415; 135 N. Y. 289; 150 N. Y. 492; 86 Hun, 83; 90 Hun, 484; 6 App. Div. 312, 316, 324; 148 N. Y. 363; 89 Hun, 296; 91 Hun, 103; 13 Misc. 453, 461; limited, 45 App. Div. 68; cited, 163 N. Y. 32 68, 231, 235 People ex rel. Kittenger v. Board of Civil Service Commissioners of the City of Buffalo, 20 Misc. 217; 45 N. Y. Supp. 46; 70 St. Rep. 46 78, 120, 240 People ex rel. Kopp v. French, 102 N. Y. 583, 585 153 People ex rel. Kruschinsky v. Martin, 36 N. Y. 851 153 People ex rel. Lamb v. Board of Health of Long Island City, 76 Hun, 5; 59 St. Kep. 160; 27 N. Y. Supp. 660 193 People ex rel. Langdon v. Dalton, 49 App. Div. 71. See 46 App. Div. 264; cited, 49 App. Div. 73 45, 66 People ex rel. Lawson v. Ooler, as Comptroller of the City of New York, 40 App. Div. 65 131, 185, 192, 198 People ex rel. Leary v. Knox, New York Law Journal, April 26, 1901 58 People ex rel. Lee v. Gleason et al.. Constituting the Board of Fire Commissioners of Long Island City, 32 App. Div. 357; 53 N. Y. Supp. 7 84, 85 People ex rel. Lee v. Waring, 1 App. Div. 594; 37 N. Y. Supp. 478; 73 St. Rep. 222; affd., 149 N. Y. 621; declared no longer applicable, 27 Misc. 153; 49 App. Div. 238; followed, 9 App. Div. 621; cited, 7 App. Div. 247; 49 App. Div. 240 145, 146 People ex rel. Leet v. Keller, Commissioner of Public Charities for the Boroughs of Manhattan and The Bronx, 31 App. Div. 248; 52 N. Y. 950; affd. on various grounds, 157 N. Y. 90; 51 N. B. Rep. 431; cited, 26 Misc. 619; followed, 35 App. Div. 493; explained and distgd., 158 N. Y. 187; 158 N. Y. 175; 27 Misc. 662; distgd., 159 N. Y. 235; cited, 48 App. Div. 133; 49 App. Div. 240, 241; 30 Misc 329 51, 52, 238 People ex rel. Lewis v. Brush, 146 N. Y. 60; 40 N. E. Rep. 502; 65 St. Rep. 753, affg. 83 Hun, 613; 31 N. Y. Supp. 586; 64 St. Rep. 139 139, 140, 144 People ex rel. Linnekin v. Ennis, Commissioner of the Fire De- partment of the City of Brooklyn, 18 App. Div. 412 157 People ex rel. Lockwood v. Trustees of the Village of Saratoga Springs, 7 N. Y. Supp. 125; 54 Hun, 16; 26 St. Rep. 54; cited, 148 N. Y. 156; 19 App. Div. 567 27, 120 People ex rel. Lodholz v. Knox, 58 App. Div. 542 95, 97 People ex rel. Lyon v. Nicoll, 32 N. Y. Supp. 279 173 People ex rel. Maloney v. Lindblom et al. Reported in Fifth An- nual Report Chicago Civil Service Commission, p. 82 78, 79 People ex rel. Martin v. Scully, 56 App. Div. 302 33, 35 People ex rel. Mayor v. Nichols, 79 N. Y. 582; cited, 50 App. Div. 375 165 People ex rel. McAleer v. French, 119 N. Y. 502; cited, 50 App. Div. 62; 53 App. Div. 3.38 211 People ex rel. Maple v. Lindblom 82 People ex rel. SIcCabe v. Constable, as Superintendent of the De- partment of Buildings of the City of New York, 27 App. Div. 74, 189 People ex rel. McCarthy v. French, 25 Hun, 111; 10 Abb. N. C. 418- 13 St. Rep. .=>S4: cited, 106 N. Y. 67; 8 St. Rep. 634; 26 W. Dig. 539; 46 St. Rep. 458; 19 N. Y. Supp. 642; 7 Misc. 294; 14 Misc. 177 202, 20S People ex rel. McCarthy v. Shea, 51 App. Div. 227 201 Table of Cases. xxxiii People ex rel. McClelland v. Roberts, Comptroller, 148 N. Y. 360; 42 N. E. Kep. 1082; affg. 91 Hun, 101; 36 N. Y. Supp. 677; 71 St. Rep. 696; affg. 13 Misc. 448; cited, 14 App. Div. 483; 20 Misc. 217; 89 Hun, 292; 157 N. Y. 368; 153 N. Y. 664; 17 Misc. 504; 45 App. Div. 68; 5 App. Div. 164; 158 N. Y. 187; 17 Misc. 509; 14 App. Div. 489, 494; 20 Misc. 210; 152 N. Y. 355, 378, 379; 15 App. Div. 89; distgd., 21 Misc. 135; 163 N. Y. 32.. 4, 114, 227, 235 236, 238, 239, 240, 241 People ex rel. McCollum v. Scannell, 56 App. Div. 51 212 People ex rel. McCullougli v. Cram, 15 Misc. 12; 36 N. Y. Supp. 1117; 72 St. Rep. 266 182, 189 People ex rel. McDonald v. Clausen, 50 App. Div. 286; cited, 34 Misc. 120 136, 145, 15© People ex rel. McDonald v. Dantry, 48 App. Div. 131, revg. 27 Misc. 160 138 People ex rel. McMorrorw v. Roosevelt, 23 App. Div. 533; dted, 49 App. Div. 128; 53 App. Div. 339 212 People ex rel. Mead v. Dalton, Commissioner of Water Supply of the City of New York, 27 Misc. 667 128 People ex rel. Mehegan v. Scannell, Fire Commissioner of the City of New York, 28 Misc. 401; 59 N. Y. Supp. 950 56, 137 People ex rel. Merritt v. New York City Civil Service Board et al., 77 St. Rep. 191; 13 App. Div. 309; 43 N. Y. Supp. 191 78, 85 People ex rel. Meyers v. Dillon, Mayor of the City of New Bochelle, Grenville T. Emmet et al.. Composing the Board of Police Com- missioners of the City of New Rochelle, and The City of New Rochelle, 46 App. Div. 187 143, 211 People ex rel. Miller v. Elmendorf, Mayor of the City of Ithaca, 42 App. Div. 306; 51 App. Div. 173; 57 App. Div. 340 . . 166, 212, 213 People ex rel. Miller v. Feitner et al., as Commissioners of Taxes, etc., 27 Misc. 153; 57 N. Y. Supp. 807; aSd., 42 App. Div. 622; cited, 29 Misc. 702; 49 App. Div. 104 146, 186 People ex rel. Miller v. Justices, 78 Hun, 334; cited, 48 App. Div. 132; 33 Misc. 360 137 People ex rel. Miller v. Wurster, 91 Hun, 234; cited, 50 App. Div. 360 211 People ex rel. Milliken v. Comrs. of the Almshouse of Newburgh, 65 Hun, 169; 47 .St. Rep. 369; 20 N. Y. .Supp. 21 119, 139 People ex rel. Mitchel v. La Grange, 2 App. Div. 444; 37 N. Y. Supp. 991; 73 St. Rep. 533; afCd., 151 N. Y. 664; cited, 17 App. Div. 484, 489, 490; 17 Misc. 145; 48 App. Div. 129; 53 App. Div. 280; 58 App. Div. 221; 166 N. Y. 49 193, 195, 200 People ex rel. Moloney v. Waring, Jr., Commissioner of the De- partment of Street Cleaning of the City of New York, 7 App. Div. 204; 40 N. Y. Supp. 275 145, 156, 157 People ex rel. Mosher v. Stowell, 9 Abb. N. C. 456 131 People ex rel. Mullen v. Sheffield et al., as Fire Commissioners, 24 App. Div. 214; 48 N. Y. Supp. 796 75, 80 People ex rel. Munday v. Fire Comrs., 72 N. Y. 445; 12 Hun, 500; cited, 84 Hun, 347; 91 Hun, 310; 2 App. Div. 446; 39 N. Y. Supp. 611; 17 App. Div. 485; 49 App. Div. 210; 50 App. Div. 386; 166 N. Y. 49 191, 192, 197, 198, 200, 204 People ex rel. Murphy v. Howell, 37 St. Rep. 181; 13 N. Y. Supp. 217; cited, 15 Misc. 14 166 People ex rel. Nason v. Feitner, 58 App. Div. 594 158 People ex rel. Nutall v. Simis et al., as Commissioners of Charities and Corrections of the City of Brooklyn, 18 App. Div. 199; 45 N. Y. Supp. 940; 79 St. Rep. 940 157, 205 iii xxxiv Table of Cases. People ex rel. O'Brien v. Cruger et al., Constituting the Board of Park Oommissioners for the City of New York, 12 App. Div. 536; 42 N. Y. Supp. 398; 76 iSt. Kep. 398; followed, 50 App. Div. 286; limited, 50 App. Div. 324; cited, 15 App. Div. 506; 50 App. Div. 293; 50 App. Div. 326 134, 135, 136, 144, 165 People ex rel. O'Brien v. Porter, 90 Hun, 401; 35 N. Y. Supp. 811; 70 St. Bep. 271 166 People ex rel. O'Brien v. Scannell, 53 App. Div. 161 153 People ex rel. O'Connor v. Adams, 133 N. Y. 202; 30 N. B. Rep. 851; 44 St. Rep. 524; 6 N. Y. Supp. 128, revg. 53 Hun, 141; 25 St. Rep. 351; cited, 38 St. Rep. 401; 14 N. Y. Supp. 554; 43 St Rep. 527; 17 N. Y. Supp. 589 158, 160 People ex rel. O'Connor v. Brady, 49 App. Div. 238 131, 137, 146 People ex rel. O'Grady v. Civil Service Commission 78 People ex rel. O'Neill v. Roosevelt, 17 App. Div. 301; cited, 50 App. Div. 53 212 People ex rel. O'Sullivan v. New York Law School, 68 Hun, 118; 52 St. Rep. 14; 22 N. Y. Supp. 663; 1896 144 People ex rel. Patten v. Waring, New York Law Journal, Novem- ber 4, 1895 156 People ex rel. Percival v. Cram, 164 N. Y. 106, revg. 50 App. Div. 380, which affd. 29 Misc. 359; compare 158 N. Y. 666, which affd. 32 App. Div. 414; cited, 34 App. Div. 6; 51 App. Div. 237. . 145 186. 188, 198, 220 People ex rel. PeiTy v. Stark, 4 N. Y. iSupp. 820; 22 St. Rep. 531; 117 N. Y. 649 167 People ex rel. Pettit v. Knox, 31 Misc. 440 78, 79 People ex rel. Pine v. Martin, 53 App. Div. 19 11 People ex rel. Powers v. Welles, 18 App. Div. 132; cited, 53 App. Div. 338 211 People ex rel. Quinn v. Feitner, 30 App. Div. 241; affd., 156 N. Y. 694 191 People ex rel. Quirk v. York, 52 App. Div. 295; cited, 56 App. Div. 53 211 People ex rel. Ray v. Henry, 47 App. Div. 133 180, 187 People ex rel. Requa v. Neubrand, 32 App. Div. 49; 52 N. Y. Supp. 282 132 People ex rel. Reynolds v. Squier, as Commissioner of the Depart- ment of Parks of the City of Brooklyn, 10 App. Div. 415; 76 St. Rep. 1; 42 N. Y. Supp. 1; cited, 79 St. Rep. 940 156, 158 People ex rel. Rossner v. Scannell, 49 App. Div. 244 79 People ex rel. Rossney v. Armbruster, 59 Hun, 586; 36 St. Rep. 918; 13 N. Y. Supp. 942; cited, 12 Misc. 392 168 People ex rel. Rumph v. Supervisors of Kings County, 89 Hun, 38; 34 N. Y. 'Supp. 1128: 09 St. Rep. 386; Ct. App. 1895 139 People ex rel. Russell v. Fire Commissioners, 76 Hun, 146; 57 St. Rep. 303; 27 N. Y. Supp. 548 153 People ex rel. Ryan v. Civil Service Supervisory and Examining Boards of the City of New York, etc., 17 Abb. N. C. 64; 3 How. Pr. 40; af!d., 41 Hun, 287; 103 N. Y. (157; cited. 111 N. Y. 455; 19 St. Rep. 133; distgd., 55 Hub, 97; 28 St. Rep. 467; 8 N. Y. Supp. 265; explained, 65 Hun, 134; 47 St. Rep. 258; 19 N. Y. Supp. 793 15, 16 People ex rel. Ryan v. French, 91 N. Y. 265; cited, 46 App. Div. 520 124: People ex rel. Satterlee v. Board of Police, 75 N. Y. 38, revg. 12 Hun, 653; cited, 28 N. Y. 122; 38 St. Rep. 907; 45 Hun, 342; 10 iSt. Rep. 310; 25 Abb. N. C. 370; 33 St. Rep. 18; 11 N. Y. Supp. 217: 38 St. Rep. 806; 14 N. Y. Supp. 7S0; 73 Hun, 332; 26 N. Y. .Supp. 212; 80 Hun, 380; 91 Hun, 25; 18 Misc. 538; explained, 31 St. Rep. 808; 10 N. Y. Supp. 555; cited, 49 App. Div. 156 121 Table of Cases. xxxr People ex rel. Schelpp t. Knox, 48 App. Div. 477; cited, 54 App. Div. 340, 341; 57 App. Div. 157 56, 57, 58, 59, 8t>, 92 People ex rel. Schumann v. Coler, as OomptroUer of the City of New York, and James McCartney, as Commissioner of iStreet Cleaning of the City of New York, 38 App. Div. 615; cited, 48 App. Div. 450. See 44 App. Div. 19; 53 N. Y. Supp. 1047 188 People ex rel. Schumann v. McCartney, 34 App. Div. 19; 53 N. Y. Supp. 1047 188 People ex rel. Sears v. Itobey, 8 App. Div. 468; 40 N. Y. iSupp. 577; also 17 App. Div. 621; modified, 153 N. Y. 381; 47 N. B. Rep. iSUO; distgd., 34 App. Div. 6 15, 55, 85, 114, 143, 175 People ex rel. Shea v. Bryant, 28 App. Div. 483; followed, 53 App. Div. 161; cited, 53 App. Div. 163 137, 153 People ex rel. Shields v. Scannell, 48 App. Div. 69, afCg. 27 Misc. 734; 59 N. Y. Supp. 480; distgd. 51 App. Div. 363 163, 164, 172 People ex rel. Shuster v. Humphrey et al.. Commissioners of Police of the City of Poughkeepsie, 156 N. Y. 231; cited, 42 App. Div. 306 156 People exTel. Silvey v. Municipal Commission, 30 Misc. 518. . 107, 225 People ex rel. Simermyer v. Eoosevelt, 2 App. Div. 498; affd., 151 N. Y. 675; cited, 56 App. Div. 53 212 People ex rel. Simon v. Mayor, 20 Misc. 189; 45 N. Y. Supp. 900 . . 143 People ex rel. Sims. v. Fire Comrs., 73 N. Y. 437; cited, 49 App. Div. 174, 210; 50 App. Div. 374; 166 N. Y. 49; 106 N. Y. 67; 126 N. Y. 182; 133 N. Y. 237; 49 Hun, 479; 58 Hun, 155; 60 Hun, 229; 61 Hun, 85; 63 Hun, 392; 64 Hun, 206; 26 St. Kep. 766; 46 (St. Rep. 458; 3 N. Y. Supp. 525; 9 N. Y. iSupp. 245; followed, 47 Hun, 15. . 1^ 183, 189, 197, 200, 205 People ex rel. Snyder v. Summers, 30 St. Rep. 614; 9 N. Y. iSupp. 700; cited, 57 Hun, 364; 32 St. Rep. 129; 10 N. Y. Supp. 587; 148 N. Y. 161 119 People ex xel. Speight v. Coler, as Comptroller of the City of New York, 15 N. Y. 676, affg. 31 App. Div. 523; 52 N. Y. Supp. 197; cited, 34 App. Div. 6; 158 N. Y. 204; distgd., 41 App. Div. 458. 152, 175 People ex rel. (Stephens v. Barden, 30 St. Rep. 52; 8 N. Y. Supp. 960, revg. 7 N. Y. Supp. 123; distgd., 65 Hun, 173; 47 St. Rep. 369; 20 N. Y. Supp. 21; cited, 148 N. Y. 161 119 People ex rel. Stone v. Dalton, 32 Misc. 109 201 People ex rel. Strahan v. Feitner, 49 App. Div. 101, afCg. 29 Misc. 702; distgd., 51 App. Div. 230 121, 206 People ex rel. Strauss v. Roosevelt, 2 App. Div. 536; afCd., 153 N. Y. 657; cited, 56 App. Div. 53 212 People ex rel. Stutzbach v. Coler, 34 Misc. 119 159 People ex rel. Sweet v. Lyman, State Commissioner of Excise, 20 Misc. 80; 44 N. Y. Supp. 1083; 78 St. Rep. 1084; affd., 30 App. Div. 135; 50 N. Y. Supp. 444; affd., 157 N. Y. 368; 52 N. B. Rep. 132; cited, 25 Misc. 619; 28 Misc. 1; 45 App. Div. 68; distgd., 49 App. Div. 127. See 51 N. Y. Supp. 641; cited, 164 N. Y. 67, 69; 34 Misc. 293 37, 42, 70, 109, 168, 169, 170, 171, 176, 231, 241 People ex rel. Sullivan v. Waring, 36 N. Y. Supp. 1119; 72 St. Rep. 268 ~ 136 People ex rel. Tate v. Dalton, Commissioner of Water Supply of City of New York, 24 Misc. 10; afCd., 34 App. Div. 6; affd., 158 N. Y. 204; cited, 27 Misc. 734; 41 App. Div. 458; 44 App. Div. 449; 49 App. Div. 240. . 33, 86, 87, 113, 114, 141, 152, 169, 183, 184, 206 People ex rel. Taylor v. Welde, as Commissioner of Jurors, 28 Misc. 582; 59 N. Y. Supp. 1030; cited, 29 Misc. 702; 33 Misc. 360. 33 137, 176 People ex rel. Terry v. Keller, Commissioner of Public Charities for the Boroughs of Manhattan and The Bronx, 35 App. Div. 493; xxxvi Table op Cases. 54 N. Y. Supp. 1011; affd., 158 N. Y. 187; 52 N. B. Rep. 1107; cited, 25 Misc. 619; 28 Misc. 401 28, 40, 41, 51, 52, 56, 186 People ex rel. Thompson y. Brookfield, 6 App. Div. 398; 39 N. Y. Supp. 673 144 People ex rel. Thompson v. Ransom, 37 St. Rep. 50; 13 N. Y. Supp. 370 176 People ex rel. Thornton v. Board of Public Parks, 43 St. Rep. 525; 17 N. Y. Supp. 589 159 People ex rel. Throckmorton v. McCartney, as Commissioner of Street Cleaning of the City of New York, and the Mayor, Alder- men and Commonalty of the City of New York, 28 App. Div. 138; 50 N. Y. Supp. 919; held inapplicable, 27 Misc. 153 137, 145 People ex rel. Tierney v. Scannell, as Fire Commissioner, etc., 27 Misc. 662; 59 N. Y. Supp. 679; followed, 27 Misc. 697; 28 Misc. 401 13S People ex rel. Tobin v. Knauber et al., Constituting the Civil Ser- vice Board of the City of Syracuse, 27 Misc. 253; 57 N. Y. Supp. 782 228 People ex rel. Traphagen v. King, Jr., et al.. Composing the Board of the Department of Public Parks of the City of New York, 13 App. Div. 400; 42 N. Y. Supp. 961; 73 St. Rep. 961; cited, 27 Misc. 158; 79 St. Rep. 940 156, 158, 201 People ex rel. Travis v. Durston, Agent and Warden of Auburn State Prison, 3 N. Y. Supp. 522 144, 183, 235 People ex rel. Tregaskis v. Palmer, as Comptroller of the City of Brooklyn, 9 App. Div. 252; 41 N. Y. Supp. 494; 75 St. Rep. 887.. 29 114, 139 People ex rel. Uhrie v. Gilroy, 60 Hun, 507; 39 St. Rep. 526; 15 N. Y. Supp. 242; cited, 15 App. Div. 597; 50 App. Div. 289. . . 11, 145 151, 159, 160 People ex rel. Vanderhoof v. Palmer, 3 App. Div. 389; 38 N. Y. Supp. 651; 74 St. Rep. 517 136, 137, 144 People ex rel. Van Petten v. Cobb et al.. Constituting the New York Civil Service Commission, 43 N. Y. Supp. 120; 13 App. Div. 56; cited, 20 Misc. 81; 20 Misc. 217 .... 74, 77, 78, 81, 83, 120 People ex rel. Veiller v. Brady, as Commissioner of Buildings of the City of New York for the Boroughs of Manliattan and The Bronx, 43 App. Div. 60; 58 App. Div. 221 198, 200 People ex rel. Wagner v. Board of Trustees of the Village of Cohocton, 17 Misc. 652; considered and questioned, but held still applicable, 41 N. Y. Supp. 449; cited, 19 Misc. 673 139, 144, 162 People ex rel. Wallace v. Diehl, 50 App. Div. 58 ■. 204 People ex rel. Walsh v. Brady, 48 App. Div. 128 204 People ex rel. Ward v. Drake et al., Constituting the Board of Public Works of the City of Buffalo, N. Y., 43 App. Div. 325. . 183 186 People ex rel. Wardrop v. Adams, 22 St. Rep. 856. See also People V. Adams 15g People ex rel. Warschauer v. Dalton, as Commissioner of Water Supply of the City of New York, 34 App. Div. 302; affd., 159 N. Y. 235; distgd., 28 Misc. 37; also in 29 Misc. 154 189, 190, 205 People ex rel. Washburn v. French, 52 Hun, 464; 5 N. Y. Supp. 712; 24 St. Rep. 207; 11 St. Rep. 520; 51 Hun, 345; s. c, 20 St. Rep. 928; 4 N. Y. Supp. 330; 52 Hun, 464; cited, 38 St. Riep. 401; 14 N. Y. Supp. 554 , 35, 120, 146 People ex rel. Waterman v. Knapp, 23. St. Rep. 468; 4 N. Y. Supp. 825; cited, 7 N. Y. Supp. 125 7. 119 People ex rel. White v. Coler, 56 App. Div. 171 36 People ex rel. Williams v. Constable, 12 App. Div. 628; held no longer appUcable, 49 App. Div. 238; cited, 49 App. Div. 240 146 Table of Cases. xxxvii People ex rel. Wilson v. Knox et al., Composing the Municipal Civil Service Commission of the City of New York, 45 App. Dlv. 537 30, 107, m People ex rel. Wohlfarth v. York, 33 App. Dlv. 573; 53 N. Y. Supp. 947 31 People ex rel. Woltman v. Myers, 32 St. Rep. 435; 10 N. Y. Supp. 815 191 People ex rel. Wood v. Draper, 15 N. Y. 544 231 People ex rel. Wren v. Goettlng, 133 N. Y. 569; 44 St Rep. 503, afCg. 29 St. Rep. 286; 8 N. Y. 'Supp. 742; considered, 17 Misc. 667; follovred, 90 Hun, 145; also in 16 App. Dlv. 97; 43 App. Dlv. 325; 65 Hun, 174; 47 St. Rep. 369; 20 N. Y. Supp. 21; dlstgd., 19 App. Dlv. 567; 46 App. Div. 187; held no longer applicable under amended statutes, 158 N. Y. 204; cited, 44 App. Dlv. 449; 7 Misc. 262; 146 N. Y. 63; 88 Hun, 173; 69 St. Rep. 738; 11 Misc. 292; 17 Misc. 669; 17 Misc. 655; 89 Hun, 41; 90 Hun, 151; 16 App. Div. 101; 17 Misc. 669; 69 St. Rep. 387; 24 Misc. 10; 34 App. Div. 6; 35 App. Dlv. 141; 44 App. Div. 449; 17 Misc. 652. . 139, 140, 141, 142 143, 149 People ex rel. Wright v. Common CouncU of Buffalo, 16 Abb. N. C. 96; 2 Horw. (N. S.) 61; affd., 38 Hun, 637; appeal dismissed, 101 N. Y. 640; cited, 153 N. Y. 664; 123 N. Y. 160; 33 St. Rep. 83; 27 iSt. Rep. 54,; 7 N. Y. iSupp. 685; 152 N. Y. 364 53, 54 People ex rel. Young v. Collls, 6 App. Dlv. 467; cited, 48 App. Dlv. 132; 49 App. Dlv. 124; 33 Misc. 360 137 People ex rel. v. Loeffler, reported in Fourth Annual Report of the Civil Service Commission, City of Chicago, 1898, p. 573; 175 111. 585 29, 185, 242 People ex rel. v. Ptacek 9, 44, 93 People V. Adams, 53 Hun, 141; 6 N. Y. Supp. 128 118 People V. Adams, 51 Hun, 583; 22 St. Rep. 856; 4 N. Y. Supp. 522; cited, 149 N. Y. 225; 13 App. Dlv. 403 118 People V. Bearfield, 35 Barb. 254 204 People V. Bennett, 54 Barb. 480 • 116 People V. Boa,rd, 39 N. Y. 506, 519; cited, 49 App. Div. 211 205 People V. Campbell, 82 N. Y. 247; 18 J. & S. 82; cited, 2 App. Div. 449; 1 App. Dlv. 340 191, 198, 204 People V. Dohring, 59 N. Y. 374; cited, 53 App. Div. 339 212 People V. Common Council, 78 N. Y. 33 27 People V. Comptroller, 20 Wend. 595; cited, 129 N. Y. 366; 84 Hun, 464; 16 Misc. 665 182 People V. Fire Commissioners, 23 Hun, 317; 86 N. Y. 149 190 People V. Grace, 22 Week. Dig. 150 190 People V. Little Falls, 29 St. Rep. 723; 8 N. Y. Supp. 512; cited, 148 N. Y. 161 119 People V. Police COmrs. of Long Island City, 20 Week. Dig. 552. .. 202 People V. Starks, 33 Hun, 384 191 People V. Stout, 19 How. Pr. 171 204 People V. Wallace, 55 Hun, 149; s. c, 28 St. Eiep. 654; 8 N. Y. Supp. 591 117, 121, 122, 136 People V. Weygant, 14 Hun, 546 198 Percival, People ex Tel., v. Oram. See People ex rel. Perclval v. Cram. Perkins, United States v. See United States v. Perkins. Perry, People ex rel., v. Stark. See People ex rel. Perry v. Stark. Pettit, People ex rel., v. Knox. See People ex rel. Pettlt v. Knox. Phelan v. New York, 38 St. Rep. 805; 14 N. Y. Supp. 785 184 Phillips V. Boston, 150 Mass. 491, 494 221 Phillips V. Mayor, 88 N. Y. 245, affg. 10 Daly, 278; cited, 32 Misc. Ill; 92 N. Y. 429, 649; 1 App. Div. 5; 149 N. Y. 225; 30 N. Y. xxxTiii Table of Cases. Supp. 406; 133 N. Y. 237; 44 St. Rep. 669; applied, 51 Hun, 584; 22 St. Rep. 856; 4 N. Y. Supp. 522 158, 201 Pine, People ex rel., v. Martin. See People ex rel. Pine v. Martin. Poillon, People ex rel. Chin v. See People ex rel. Chin v. Poillon. Police Comrs. of Liong Island City, People v. See People v. Police Comrs. of Long Island City. Porter v. Howland, 24 Misc. 434; 53 N. Y. Supp. 683 160 Porter, People ex rel. O'Brien v. See People ex rel. O'Brien v. Porter. Powell, Bergen v. See Bergen v. Powell. Powers, People ex rel. v. Welles. See People ex rel. Powers v. Welles. Priddie v. Thompson, 82 Fed. Rep. 167 209 Ptacek, People ex rel. v. See People ex rel. v. Ptacek. Pulaski V. Lyman, 21 Wash. Law Rep. 403 181 Purcell V. Long Island City, 91 Hun, 271; 36 N. Y. Supp. 290; 71 St. Rep. 126 151 Q. Quinn, People ex reL v. Feitner. See People ex rel. Quinn v. Feitner. Quintard v. City of New York, 51 App. Div. 233; 33 Misc. 316. . 126, 220 Quirk, People ex rel. v. York. See People ex rel. Quirk v. York. E. Ransom, People ex rel. Thompson > . See People ex rel. Thompson V. Ransom. Ray, People ex rel. v. Henry. See People ex rel. Ra,y v. Henry. Rathbone v. Wirth, 150 N. Y. 459, 468 231 Requa, People ex rel., v. Neubrand. See People ex rel. Requa v. Neubrand. Reynolds, People ex rel., v. Squier. See People ex rel. Reynolds V. Squier. Ridenour v. Board of Education of the City of Brooklyn, 15 Misc. 418; 37 N. Y. Supp. 100; 72 St. Rep. 155 12, 115 Rigney et al., Osterhoudt v. See Osterhoudt v. Rigney et al. Riley v. New York, 96 N. Y. 331, afCg. 49 N. Y. Super. Ct. 537; cited, 37 St. Rep. 400; 13 N. Y. Supp. 563; 142 N. Y. 106; 87 Hun, 577, 579; 10 Misc. 702; distgd.. 108 N. Y. 482; 28 Week. Dig. 126; 13 «t. Rep. 859 91 Robb, People ex rel. Cline v. See People ex rel. Cline v. Robb. Roberts, People ex rel. Ewell v. See People ex rel. Bwell v. Roberts. Roberts, People ex rel. McClelland v. See People ex rel. McClel- land Y. Roberts. Robertson v. Sichel, 127 U. S. 507 87 Rogers v. City of Buffalo et al., 123 N. Y. 173; 25 N. E. Rep. 274; 33 St. Rep. .55, affg. 3 N. Y. Supp. U74, which affd. 3 N. Y. Supp. 671; 20 St. Rep. 984; followed, 130 N. Y. 399; 42 St. Rep. 384; cited, 148 N. Y. 360; 153 N. Y. 664; 74 Hun, 292; 6 App. Div. 317; 148 N. Y. 367; 150 N. Y. 500, 505, 515, 523; 152 N. Y. 367; 6 App. Div. 320; 79 .St. Rep. 425; 150 N. Y. 509; 152 N. Y. 383 18, 56, 217, 224, 243 Rogers v. Common Council of the City of Buffalo, Diebold et al., 2 N. Y. Supp. 326; 22 Abb. N. C. 144 16, 44 Roosevelt, People ex rel. Buckley v. See People ex rel. Buckley V. Roosevelt. Roosevelt, People ex rel. Kiebrick v. See People ex rel. Kiebrick V. Roosevelt. Roosevelt, People ex rel. McMorrow v. See People ex rel. McMor- row V. Roosevelt. Table of Cases. xsxix Roosevelt, People ex rel. O'Neill v. See People ex rel. O'Neill V. Roosevelt. Roosevelt, People ex rel. Simermyer v. 'See People ex rel. Simer- myer v. Roosevelt. Roosevelt, People ex rel. Strauss v. See People ex rel. Strauss V. Roosevelt. Rossner, People ex rel., v. Seannell. See People ex rel. Ressner v. iScannell. Rossney, People ex rel., v. Armbruster. See People ex rel. Rossney V. Armbruster. Rowley v. City of Rochester, 34 Misc. 291. . 40,42, 70, 109, 170, 171, 223 Rupp et al.. People ex rel. Hoffman v. See People ex rel. Hoffman V. Rupp et al. Rowland v. Mayor, 85 N. Y. 376 220 Ruggles, Bucknam v. See Bucknam v. Ruggles. Ryan v. Mayor, 91 Hun, 470; 36 N. Y. Supp. 315; 70 St. Rep. 778; cited, 7 App. Div. 337 208 Ryan, People ex rel., v. Civil Service Supervisory and Examining Boards of the City of New York, etc. See People ex rel. Ryan v. Civil Service Supervisory and Examining Boards of the City of New York, etc. Ryan, People ex rel., v. French. See People ex rel. Ryan v. French. Ryers, Matter of, 72 N. Y. 1; cited, 53 App. Div. 839 212 Rumph, People ex rel., v. Supervisors of Kings Co. See People ex rel. Rumph v. Supervisors of Kings Co. Russell, Brown v. See Brown v. Russell. Russell, People ex rel., v. Fire Commissioners. See People ex rel. Russell V. Fire Commissioners. S. Sargent v. Gorman, 38 St. Rep. 780; 14 N. Y. Supp. 481; affid., 42 St. Rep. 865; 131 N. Y. 191 175 Satterlee, People ex rel., v. Board of Police. See People ex rel. Satterlee v. Board of Police. Saw Mill Co. V. City of Brooklyn, 71 N. Y. 580 12 Sawyer, In re, 124 U. S. 200, 223 207, 208 Seannell, People ex rel. Barron v. See People ex rel. Barron v. Seannell. Seannell, People ex rel. Breckenridge v. See People ex rel. Breck- enridge v. Seannell. Seannell, People ex rel. Hartough v. See People ex rel. Hartough V. Seannell. Seannell, People ex rel. Jussen v. See People ex rel. Jussen v. Seannell. Seannell, People ex rel. McCoUum v. See People ex rel. McOoUum V. Seannell. Seannell, People ex rel. Mehegan v. See People ex rel. Mehegan V. Seannell. Seannell, People ex rel. O'Brien v. See People ex rel. O'Brien V. Seannell. Seannell, People ex rel. Rossner v. See People ex rel. Rossner V. Seannell. Seannell, People ex rel. Shields v. See People ex rel. Shields v. Seannell. Seannell, People ex rel. Tiemey v. See People ex rel. Tiemey v. Seannell. Sehelpp, People ex rel., v. Knox. See People ex rel. Schelpp v. Knox. xl Table of Cases. Schumann, People ex rel., v. Coler et al. See People ex rel. Schu- mann V. Coler et al. Schumann, People ex rel., v. McC5artney. See People ex rel. Schu- mann V. McCartney. Scully, People ex rel. Martin v. See People ex rel. Martin v. Scully. 'Sears, People ex rel., v. Tobey. See People ex rel. Sears v. Tobey. Shay, Matter of, 39 St. Hep. 866; 15 N. Y. Supp. 488; cited, 84 Hun, 503; 15 Misc. 14 ' 136 Shea, People ex rel., v. Bryant. iSee People ex rel. Shea v. Bryant. Shea, People ex rel. McCarthy v. See People ex rel. McCarthy v. Shea. Sheffield et al.. People ex rel. Mullen v. See People ex rel. Mullen V. Sheffield et al. Shields, People ex rel., v. jScannell. See People ex rel. Shields v. Scannell. ShuBter, People ex rel., v. Humphrey et al. See People ex rel. Shuster v. Humphrey et al. Sichel, Robertson v. See Robertson v. Sichel. SUvey, People ex rel., v. Municipal Commission. See People ex rel. Silvey v. Municipal Commission. Bimermyer, People ex rel., v. Roosevelt. See People ex rel. Slmer- myer v. Roosevelt. Simis, Jr., et al., Nuttall v. See Nuttall v. iSlmis, Jr., et al. Simis, People ex rel. Nutall v. See People ex rel. Nutall v. Simls. Simon, People ex rel., v. Mayor. See People ex rel. Simon v. Mayor. Sims, People ex rel., v. Fire Oomrs. See People ex rel. Sims v. Fire Comrs. Smith V. City of Broolilyn, 6 App. Div. 134; 39 N. Y. Supp. 990; cited, 51 App. Div. 237 124, 126 Smith V. Mayor, 37 N. Y. 518; cited, 46 App. Div. 520 123 Smith, Pease v. See Pease v. Smith. Smyth, Ckx>per v. See Cooper v. Smyth. Snyder, People ex rel., v. Summers. See People ex rel. Snyder v. Summers. Soby V. People, 134 lU. 66 34 Speight, People ex rel., v. Ooler. iSee People ex rel. Speight v. Ooler. Squier, People ex rel. Reynolds v. See People ex rel. Beynoldg v. Squler. Stahl, Fleming v. See Fleming v. Stahl. Starli, People ex rel. Perry v. See People ex rel. Perry v. Stark. Starlis, People ex rel. Dicliels v. See People ex rel. Dicliels v. Starts. Steinson v. Board of Education, 49 App. Div. 143 36 Steinson v. Board of Education of N. Y., 165 N. Y. -llil 221 Stephens, People ex rel., v. Barden. See People ex rel. Stephens V. Barden. Stone, People ex rel., v. Dalton. See People ex rel. Stone v. Dalton. Stout, People v. See People v. Stout. Southworth, Keenan v. See Keenan v. Southworth. Stowell, People ex rel. Mosher v. See People ex rel. Mosher v. Stowell. Strahan, People ex rel., v. Feitner. See People ex rel. Strahan v. Feitner. Strauss, People ex rel., v. Roosevelt. See People ex rel. Strauss V. Roosevelt. Table of Cases. xli Stutzbach, People ex rel., v. Coler. See People ex rel. Stutzbach V. Ooler. Bulllvan v. City of New York, 33 Misc. 315 125 Sullivan v. Gilroy, Commissioner of Public Works, etc., 8 N. Y. Supp. 401; 28 St. Rep. 566; 55 Hun, 285; cited, 13T N. Y. 552; 15 App. Dlv. 597; 20 Misc. 210; 34 N. Y. Supp. 675. . 113, 120, 182, 136 147, 159 Sullivan, People ex rel., v. Waring. See People ex rel. Sullivan V. Waring. Summers, People ex rel Snyder v. See People ex rel. Snyder v. Summers. Supervisors of Kings Co., People ex rel. Rumph v. See People ex rel. Rumph v. Supervisors of Kings Co. Supreme Ix)dge, Davis v. See Davis v. Supreme Lodge. Sutton, People ex rel. Drake v. See People ex rel. Drake v. Sutton. Sv^asey, Commonwealth v. See Commonwealth v. Swasey. Sweeley, In re, 12 Misc. 174; 67 iSt. Rep. 257; 33 N. Y. Supp. 369; affd., 146 N. Y. 401; cited, Chittenden v. Wurster, 14 App. Div. 483; also 153 N. Y. 664; also 13 Misc. 448; 157 N. Y. 368; 45 App. Div. 368; 89 Hun, 296; 13 Misc. 462; 152 N. Y. 355; 14 App. Div. 488; 148 N. Y. 224; 152 N. Y. 394 237, 239 Sweet, People ex rel., v. Lyman. -See People ex rel. Sweet v. Lyman, State Commissioner of Excise. T. Tate, People ex rel., v. Dalton. See People ex rel. Tate v. Dalton. Taylor v. Kercheval, 82 Fed. Rep. 497 23, 208, 209, 210 Taylor, People ex rel. Crane v. See People ex rel. Crane v. Taylor. Taylor, People ex rel., v. Welde. See People ex rel. Taylor v. Welde. Terhune v. Mayor, 88 N. Y. 247; cited, 46 App. Div. 522; 49 App. Div. 211, 213 125, 127 Terry, People ex rel., v. Keller. See People ex rel. Terry v. Keller. Thompson v. Hicks 206 Thompson, People ex rel. Keech v. See People ex rel. Keech v. Thompson. Thompson, People ex rel., v. Brookfield. See People ex rel. Thomp- son V. Brookfield. Thompson, People ex rel., v. Ransom. See People ex rel. Thomp- son V. Ransom. Thompson, Priddie v. See Priddie v. Thompson. Thornton, People ex rel., v. Board of Public Parks. See People ex rel. Thornton v. Board of Public Parks. Throckmorton, People ex rel., v. McCartney et al. See People ex rel. Throckmorton v. McCartney et al. Tierney, People ex rel., v. iScannell. See People ex rel. Tierney V. Seannell. Tobin, People ex rel., v. Knauber et al. See People ex rel. Tobin V. Knauber et al. Traphagen, People ex rel., v. King et al. See People ex rel. Trap- hagen v. King et al. Tobey, People ex rel. Sears v. See People ex rel. Sears v. Tobey. Torney, Matter of, 11 Misc. 291; 32 N. Y. Supp. 277; 65 St. Rep. 452 139 Town of Monroe, Lorillard v. See Lorillard v. Town of Monroe. Town of Randolph, Bryant v. See Bryant v. Town of Randolph. Tracy, People ex rel. Cochrane v. See People ex rel. Cochrane v. Tracy. xlii Table of Cases. ^ Travis, People ex rel., v. Durston. See People ex rel. Travis v. Durston. Tregaskis, People ex rel., v. Palmer. See People ex rel. Tregaskis V. Palmer. Trustees of the Village of Saratoga Springs, People ex rel. Lock- wood V. See People ex rel. Loekwood v. Trustees of the Village of Saratoga Springs. F. Uhrie, People ex rel., v. Gilroy. See People ex rel. Uhrie v. Gilroy. Union & Advertiser Co., Foreman v. See Foreman v. Union & Advertiser Co. United States v. Curtis 214, 215 United States, Keim v. See Keim v. United States. United States v. Newton, Washington Law Reporter, Vol. 19, p. 770 217 United States v. Perkins, 116 U. S. 700 185 V. Vanderhoff, Matter of. 15 Misc. 434; 36 N. Y. Snpp. 833; 72 St. Eep. 354 121 Vanderhoff, People ex rel., v. Palmer. See People ex rel. Vander- hoff V. Palmer. Van Petten, People ex rel., v. Cobb et al. See People ex rel. Van Petten v. Cobb et al. Van Valkenburgh v. Mayor, 49 App. Div. 208; cited, 33 Misc. 316 125, 126, 189, 200, 205 Van Wart, People ex rel. Joyce v. See People ex rel. Joyce v. Van Wart. iVan Wyck, People ex rel. Jacobus v. .See People ex rel. Jacobus V. Van Wyck. Veiller, People ex rel., v. Brady. See People ex rel. Veiller v. Brady. Village of Little Falls, People ex rel. Hall v. See People ex rel. Hall V. Village of Little Falls. Vincent v. Cram et al., as Commissioners of Docks, etc., 27 Misc. 158; 57 N. Y. Sup^. 771; followed, 32 Misc. Ill 160, 201 W. Wagner, People ex rel. v. Board of Trustees of the Village of Oohocton. See People ex rel. Wagner v. Board of Trustees of the Village of Oohocton. Wallace, People v. See People v. Wallace. Wallace, People ex rel. v. Diehl. See People ex rel. Wallace v. Diehl. Walsh, People ex rel., v. Brady. (See People ex rel. Walsh v. Brady. Walsh V. City of Albany, 32 App. Div. 128; 52 N. Y. Supp. 936 46 Ward, People ex rel., v. Drake et al. See People ex rel. Ward v. Drake et al. Wardrop, People ex rel., v. Adams. See People ex rel. Wardrop v. Adams. Wardlaw v. Mayor, 137 N. Y. 194; cited, 46 App. Div. 521 124 Waring, People ex rel. Patten v. See People ex rel. Patten v. Waring. Waring, People ex rel. Moloney v. See People ex rel. Moloney v. Waring. iWaring, People ex rel. Sullivan v. See People ex rel. Sullivaa v. Waring. Table of Cases. xliii "Warner et al., Oain v. See Cain v. Warner et al. Warner et al., Miller v. See Miller v. Warner et al. Warschauer, People ex rel., v. Dalton. See People ex rel. War^ schauer v. Dalton. Washburn, People ex rel., v. French. See People ex rel. Wash- burn V. French. Waterman, People ex rel., v. Knapp. See People ex rel. Waterman V. Knapp. Weber and Kanter, L>indblom v. See Llndblom t. Weber and Kanter. Weidman v. Board of Education, 26 St. Kep. 765; 7 N. Y. Supp. 309 187 Welde, People ex rel. Denholm v. iSee People ex rel. Denholm v. Welde. Welde, People ex rel. Taylor v. See People ex rel. Taylor v. Welde. Welles, People ex rel. Deloughry v. See People ex rel. Deloughry V. Welles. Welles, People ex rel. Powers v. See People ex rel. Powers v. Welles. Wemple et al.. People ex rel. Chase v. See People ex rel. Ohase V. Wemple et al. Weygant, People v. See People v. Weygant. White V. Berry, 171 TJ. S. 366 ; 208, 209 White, Butler v. See Butler v. White. White, People ex rel., v. Coler. See People ex rel. White v. Ooler. Whitlock, People ex rel. Gere et al. v. See People ex rel. GJere et al. V. Whitlock. Whitney, In re, 9 App. Div. 621; 40 N. Y. Supp. 1151; held no longer applicable, 49 App. Div. 238; cited, 49 App. Div. 240 146 Whitney, Bennett v. See Bennett v. Whitney. Williams v. Adams, 3 Allen, 171 221 Williams, People ex rel., v. Constable. See People ex rel. Williams v. Constable. Willis, Elliott V. See Elliott v. Willis. Willis, McCloskey v. See McCloskey v. Willis. Wilson, People ex rel., v. Knox et al. See People ex rel. Wilson V. Knox. Wlrth, Rathbone v. See Rathbone v. Wirth. Woblfarth, People ex rel., v. York. See People ex rel. Wohlfarth V. York. Woltman, People ex rel., v. Myers. See People ex rel. Woltman V. Myers. Wood V. Mayor, 55 N. Y. Super. Ot. 230; cited, 49 App. Div. 211. . 125 Wood, People ex rel., v. Draper. See People ex rel. Wood v. Draper. Woods, Commonwealth v. See Commonwealth v. Woods. Woods V. Gary, 25 Wash. Law Rep. 591 23, 183, 206 Woodward, Dartmouth College v. See Dartmouth College v. Wood- ward. Wortman, In re, 2 N. Y. Supp. 324; 22 Abb. N. C. 137; explained, 57 Hun, 365; 10 N. Y. iSupp. 587; 32 St. Rep. 129; cited, 7 N. Y. Supp. 125; 84 Hun, 504; 72 St. Rep. 268 114, 136 Wren, People ex rel., v. Goetting. See People ex rel. Wren v. Goetting. Wright, Nowell v. See Nowell v. Wright. Wright, People ex rel., v. Common Council of Buffalo. See People ex rel. Wright v. Common Council of Buffalo. Wright, People ex rel. Fallon v. See People ex rel. Fallon v. , Wright. xlir Table of Cases. Wurster, Chittenden et al. v. iSee Chittenden et al. v. Wurster. Wurster, People ex rel. Bernard v. See People ex rel. Bernard V. Wurster. Wurster, People ex rel. Miller v. See People ex rel. Miller v. Wurster. Y. York, People ex rel. Dermody v. See People ex rel. Dermody v. York. York, People ex rel. Eagan y. See People ex rel. Eagan v. York. York, People ex rel. Fahy v. See People ex rel. Fahy v. York. York et al., Kelly v. See Kelly v. York et al. York, People ex rel. Quirk v. iSee People ex rel. Quirk v. York. York, People ex rel. Wohlfarth v. See People ex rel. Wohlfarth v. York. Young, People ex rel., v. Collis. See People ex rel. Young v. Collis. THE CIVIL SERVICE LAW. Chapter 370, Laws of 1899, as Amended up to and Including tli« Date of Adjournment of the Legislature in 1901. AN ACT in relation to the civil service of tlie state of New York and the cities and civil divisions thereof. Section 1. Short Title — This chapter shall be known as the civil service law.* PBESENT CONDITION OF THE STATUTORY LAW BELATINQ TO CIVIL SERVICE. The Civil Service Law of New York State.— This act repeals all prior legislation In the State of New York relating to the subject of civil service and to the preferential right of appointment and employ- ment given to veterans,— the full list of the laws repealed appearing In the schedule at the end of this statute. In the case of People ex rel. Fleming v. Dalton, 158 N. Y. 175, it was finally decided by the Court of Appeals that the general law (chap. 186, Laws 1898) re- pealed all inconsistent provisions of the New York charter. There Is now one General Civil Service Law applicable to the whole State and to all the cities thereof and also to those counties and other political subdivisions of the State to which the State Commission may, pursuant to the discretionary power conferred upon it by sec- tion 9, extend the civil service rules. As to the duty of the Legisla- ture to enact laws to carry into effect the constitutional provisions relating to civil service appointments, as to the constitutionality of statutes passed prior to the adoption of the present Constitution of 1894, as well as of those passed subsequent to that date, and as to the effect upon the Civil Service Law of various constitutional pro- visions relating to the power of appointment, the power of removal, and as to the restriction that in cities and other political subdivisions, public officers thereof shall either be elected by the inhabitants thereof, or else appointed by officers of these political subdivisions, compare the cases cited under the title of Constitution In this work, and also under sections 7, 13, and 23. • The Civil Service Law now forms Chapter III of the General Laws. See Heydeeker's General Laws of the State of New York, amended to close of ses- sion of 1900, Vol. I. 1 2 The Civil Sekvice Law. History of CivU Service Legislation.— Statutes providing for a eystem by which appointments and employments in the civil service shall be made according to merit and fitness, ascertained by com- petitive examination, have been enacted not only by the Federal gov- ernment, but also in the States of New Torlc, Massachusetts, Illinois (Chicago and Evanston), Wisconsin, Louisiana (city charter of New Orleans), Indiana (charitable institutions), Connecticut (city charter of New Haven), California (city charter of San Francisco), Wash- ington (city charter of Seattle), Pennsylvania (Philadelphia, and in the police and fire departments of second-class cities). Federal Legislation.— The first complete and comprehensive Civil Service Law enacted by Congress was that which is still in existence, passed January 16, 1883. But long prior to that, during the first ad- ministration of President Grant, and as an answer to an urgent ap- peal made by him to Congress, there was passed on March 3, 1871, an amendment to the Civil Appropriation Bill, which still exists as section 1753 of the Revised Statutes. It reads as follows: " That the Presi- dent of the United States be, and he is hereby, authorized to pre- scribe such rules and regulations for the admission of persons Into the civil service of the United States as will best promote the efficiency thereof, and ascertain the fitness of each candidate In re- spect to age, health, character, knowledge, and ability for the branch of service into which he seelis to enter; and for this purpose the President is authorized to employ suitable persona to conduct such Inquiries, to prescribe their duties, and to establish regulations for the conduct of persons who may receive appointment In the civil service." Under this statute and by virtue of the fact that the Presi- dent is by the United States Constitution the head of the executive department of the government, an examining board was appointed by President Grant and a system of competitive examinations was In- augurated. At various times Congress failed to malie any appropria- tion and the efficiency of this Civil Service Board was greatly Im- paired, notwithstanding the marljed ability and the fidelity to civil service reform of the persons who served upon it, — among whom were Dorman B. Eaton and George William Curtis. The Federal Civil Service Law Is supplemented by a code of rules promulgated by the President and prepared by him with the aid of the Commission. The law contains provisions as to the ncope of these rules. Officers are charged to obey them. So far, howeve", as they restrict the power of removal, it has been repeatedly held by the courts that the civil service rules promulgated by the President are merely executive orders; they have not the force of law; violation of them Is not the violation of a law; the President, however, may en- force obedience by a removal of the disobedient subordinate. (See cases cited under §i 6, 7, 9, and 23.) The United States Civil Service Commissioners are merely persons appointed to aid and advise the President In the formation of rules regulating the civil service and In the conduct of the examinations prescribed by such rules. The Fed- The Civil Seeticb Law. 3 «ral Civil Service Law also contains certain restrictions as to political assessments and some provisions in the nature of a fixing of the qualifications that are required of candidates. In addition to the Civil Service Law of 1883, and to section 1753 of the Revised Statutes, there are numerous other statutory provisions relating to the Federal civil service. They appear as sections of the Revised Statutes and as general laws. Among other things provided for by these sections of the Revised Statutes and of these general laws are preference in appointment to veterans disabled while in the line of duty, prohibi- tions against political contributions and discriminations, penalties against bribery and against the practice of soliciting contributions or of receiving gifts from Federal employees, regulations as to the hours of labor and as to leaves of absence of subordinates In the executive departments, and similar matters. New York Legislation.— All the successive Civil Service Acts of New York, Including the Veteran Acts, appear In the appendix to thia work, and no further mention need be made here other than to say that the original act was passed on May 4, 1883; it applied only to the State and larger cities; In 1884 it was amended so as to apply to all cities; in 1897, the so-called " Black Law," providing for a dual system of examination, — a " merit " examination by the Civil Ser- vice Commission and a supplementary " fitness " examination by the appointing power, — was passed; In 1898, by chapter 186 of the lawa of that year, the system of dual examinations was practically abol- ished in cities, but continued In the State service until the passage of the present law commonly known as the " White Law," which repealed all Civil Service Acts and all Veteran Acts In force at that time. The fundamental theory of the original Civil Service Act was that a commission should be appointed to aid and advise the Governor in the preparation and enforcement of civil service rules for the State, and that in cities the mayor should appoint suitable persons to assist him in a similar manner. The Governor and the mayor were the respon- sible ofllcers for the administration of the Civil Service Law. The rules and classifications were their official acts. This was undoubt- edly analogous to the theory upon which the Federal Civil Service Act was based, but was not required by the constitutional relations of the chief executives of the State and of cities towards subordinate employees and officers in their respective jurisdictions, as was the case in the Federal civil service. The present Civil Service Law leaves it to the various commissions. State and municipal, to take the Initia- tive in framing civil service rules and classifications. The approval of the chief executive, the Governor or the mayor, is necessary In order to give validity to the action, and in the case of city rules, the approval of the State Commission is also necessary. The power of the Governor and of the mayors is now in the nature of a veto power. For a complete and detailed history of civil service legislation in 4 The Civil Seba^ice Law. the State and of constitutional provisions affecting the same, down to January 1, 1895, see opinion of Herrick, J., in People ex rel. McClel- land V. Roberts, 13 Misc. 448. iUassachusetts Iiegislation.— An act was passed in Massachusetts, June 3, 1884, which, In its general features, was based upon the Fed- eral act and the New York act. Under this act the application of the system to the service of the cities and the State was under the sole direction of the State Civil Service Commission, thus securing not only uniformity of procedure, but also great economies in the admin- istration of the law. Very nearly all of the employees of the State and of the larger cities are included under the merit system. The only exceptions are those defined in the statute itself and a number of private secretaries to executive officers. In addition to the inclu- sion of practically all positions of a clerical character in the State service, the system is applied to the prison, fire, police, and school Janitor, and other services in the city of Boston, and has silso been applied to a greater or less degree in twenty-seven of the cities (rf the State. Illinois Legislation.— An act to regulate the civil service of cities was approved by the Legislature of Illinois on March 20, 1895. It is not mandatory, but may be adopted by any city by a majority vote at an election. The act provided that the mayor of each city which should adopt the act should appoint three commissioners to be known as the civil service commissioners of such city. The full term of office of such commissioners is three years. This act includes all that Is embraced in the Federal act, the act of Massachusetts, and the original act of New York, and goes much further than any of these In the method of its application. It, for instance, requires the ap- pointment of the eligible standing highest upon the list instead of giving discretion in selection among the highest three eligibles. It forbids removals except for cause, upon written charges, after hear- ing by the civil service commission. It forbids the payment of salaries by the comptroller or other auditing officer except on certifi- cate of legal appointment furnished by the civil service commission. It empowers the commission to administer oaths and to compel the attendance of witnesses in conducting its investigations. It also makes specific provision for competitive examinations for promotion under rules similar to those that govern examinations for original appointment Prosecutions for violations of the act may be instituted either by the Attorney-General, the State's attorney for the county In which the offense is alleged to have been committed, or by the commission acting through special counsel, such suits to be conducted and controlled by the prosecuting officers who institute them. This act is one of the most complete of the Civil Service Acts that have thus far been adopted. Chicago. — The Civil Service Act passed by the Illinois Legisla- ture was adopted by Chicago in 1895 by a popular vote of its The Civil Sbevice Law. 5 citizens, there being a majority of 50,000 in favor of Its adoption. This act was tested in the State courts, which have decided in favor of the application of the rules in the department of education and in the police boards. A decision of the State Supreme Court makes the rules applicable to the entire police force, with the exception of the chief of police, and applies also to all high offices, the duties of which are analogous in character to those in other departments. Over one hundred of these higher places have been vacated since the decision and such vacancies filled from eligible lists. The classified service of the city of Chicago includes all officers or employees of the city other than those elected by the people or those who are elected by the city council pursuant to the city charter, or whose appointment is subject to confirmation by the city council, judges and clerks of election, members of any board of education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, and one private secretary to the mayor. With the exception of the positions specifically enumerated above, no positions in the service of the city of Chicago are excepted from competitive examination. Evanston.— On April 16, 1895, a large majority of the voters of Evanston decided in favor of the adoption of the provisions of the State Civil Service Act to regulate the civil service of cities. The classification of positions and the general application of civil service rules are very similar to those of the city of Chicago. Wisconsin Legislation.— In 1895 an act was passed in the Wiscon- sin Legislature authorizing the adoption of civil service rules by cities of the first and second class. This act is similar in many respects to the Federal act, but makes the following additional provisions: 1. Rendering it illegal for a comptroller, or accountant, or auditing officer of a city to allow the claim for services of any person em- ployed in the public service in violation of the provisions of the Civil Service Law. 2. Providing that prosecutions for violations of the Civil Service Law may be instituted either by the Attorney-General, the State's attorney for the county in which the offense is alleged to have been committed, or by the board acting through special counsel; such prosecutions to be conducted and controlled by the prosecuting of- ficers who instituted them, unless they request the aid of other prosecuting officers. 3. Giving the commission, when conducting the investigations, power to administer oaths and to secure by its subpoena both the at- tendance and testimony of witnesses and the production of books and papers relevant to such investigations. Ohio Legislation. — The Legislature of Ohio has attempted to pro- vide for a civil service administration upon reform principles by the 6 The Civil Sehvice Law. passage of an act " to regulate and improve the civil service in certain departments within cities of the first grade of the second class." Louisiana Legislation (S&w Orleans). — In 1896 the city charter of New Orleans was amended so as to provide for the adoption of the competitive system in its municipal government. These charter pro- visions were nearly the same as those of the Illinois statute. In 1900 the Legislature of Louisiana vitally amended this Civil Service Law — the changes being so radical as to l^mount practically to a repeal of the former law. The most salient changes are: " 1. A civil service board composed of the mayor, controller and treasurer — instead of the present board appointed by the mayor under the following restriction: " ' No person shall be eligible for such appointment who has been a candidate for or incumbent of a municipal office in this State within four years prior to his appointment, nor shall such officer during hla Incumbency be a candidate or applicant for, or hold any State, national, municipal or parochial office, nor be a member of, or delegate to, any municipal political committee or convention, nor shall such officer be eligible for any office under the government of the city of New Orleans within four years after his incumbency for any reason shall cease.' " 2. Candidates for appointment are restricted to registered voters who actually voted at the general election next preceding their ex- amination. " 3. A minimum of 70 per cent, fixed in examinations, and appoint- ments permitted from anywhere on the list. " 4. The term of office of all appointees to expire with that of the appointing officer. " 5. A most eomprehensirye list of ' exceptions.' " 6. The appointment of laborers without restraint of any kind." Tennessee Legislation. — Until recently the charter of Memphis con- tained provisions for a civil service commission and the application of the merit system. The Legislature of 1901 has passed a bill to abolish the commission and to centralize the power of appointment in the mayor. Indiana Legislation.— In 1895 the Legislature of Indiana passed an act affecting the charitable institutions of the State, consisting of the schools for the blind and deaf and the four hospitals for the insane, and intended to put into force the merit system of appoint- ment. Connecticut Legislation.— The State of Connecticut passed an act in 1S97 amending the charter of the city of New Haven authorizing that city to introduce civil service reform In its municipal government. This act went into effect in January, 1898. The civil service board is composed of the superintendents of the police and fire departments, and three citizens who shall serve without pay, appointed by the The Civil Seevice Law. 7 mayor, and not more than two of whom shall be of the same political party. The rules adopted by the board provide, in addition to com- petitive entrance examinations, for competitive examinations for pro- motion in the police and fire departments. Certifications for appoint- ment to all classified positions except that of laborer comprise all the eligibles on a given register, and the appointing officer is not restricted as to his choice. In certifying laborers, twice the number required may be certified to the appointing officer. It is made unlawful for the comptroller of the city to malie payments of salary or other com- pensation to persons not appointed in accordance with the civil ser- -vice rules. Bills amending the New Haven civil service provisions ■are now pending in the Connecticut Legislature. California Legislation (San Francisco).— The charter for the city of San Francisco, which was adopted a few years ago by popular vote in that city and approved by the State Legislature, provides for the establishment of a very thorough and complete civil service system. Among the provisions of the charter worthy of note are the following: The mayor Is required to appoint thi-ee persons, Isnown by him to be devoted to the principles of civil service reform, who shall constitute the civil service commission, the term of appointment being for three years, and so arranged that one commissioner is appointed each year. It forbids removal except for cause, upon written charges, alter a hearing by the civil service commission. The commission is empowered to institute and prosecute legal pro- ceedings for violations of any of the provisions of the Civil Service Law. Provision is made for competitive examination for promotion and for certification in a manner similar to that for original appoint- ment. The selection of laborers is to be governed by priority of application only. The scope of the rules in the main is very much the same as for the city of Chicago, the only essential difference being that the appointing officer is not limited to a single name, but Is permitted a selection from the three highest on the register. Washington Legislation (Seattle).— The city of Seattle, at a gen- eral election held in March, 1896, adopted a new city charter, which Incorporated in substance the provisions of the Civil Service Acts of Illinois and Massachusetts. The law became effective on April 20, 1896, by the adoption of civil service rules. These rules, in the main, are similar to those for the city of Chicago and contain a number of provisions in addition to those comprised in the Federal act and rules. All officers and employees, with certain specific exceptions, were brought under the rules, and were compelled to stand competitive examination in order to retain their positions. But few changes were made as the result of this examination. Certain provisions of the Seattle act and rules, which are worthy of comment, are as follows: Every officer or employee in the classi- fied service shall hold office until removed or retired. Any officer or employee in such service may be removed by the appointing power 8 The Civil Service Law. only upon the filing with the commission of a statement in writing- of the reasons therefor; the officer or employee to be given a hearing before the commission, and if the removing officer is not sustained by the commission, the removed officer or employee must at once be reinstated. In the case of an investigation each member of the com- mission has the power to administer oaths, and the commission has the power to require the attendance of any officer or employee or other person and the production of books and papers relevant to such investigation. It is made unlawful for the city comptroller to approve or the city treasurer to pay any salary or wages to any person for service as an officer or employee of the city unless such person is occupying an office or place of employment in accordance with the provisions of the Civil Service Law. Express provision is also made for competitive examinations for promotion and for the certification for promotion in the same manner as for original appodnt- ment. The rules provide that whenever the commission is notified that efficiency in any special subject is needed in the position to be filled it may certify the names of three persons on the eligible list having the highest standing (not less than 70 per cent.) in such special subject Texas Iieglslation (Galveston). — Civil service rules are in operation in Galveston. They were modeled on those for the city of New Orleans, and were prepared by a special commission appointed for the purpose by the city council. Pennsylvania Legislation (Philadelphia). — In June, 1885, a Civil Service Act was passed to govern the civil service of the city of Philadelphia. The machinery for carrying out the provisions of this act was vested exclusively in the hands of the appointing officers.* Constitutional Provisions.— New York is the only State in which there is an express constitutional requirement that merit and fitness (tested by competitive examinations so far as is practicable), shall govern in civil service appointments. As to the constitutionality of the New York Civil Service Law prior to the adoption of article V,. section 9, and as to the constitutionality of Civil Service Laws in other States and in the Federal government, see the cases cited under the title of Constitution in this book, and also under section 7. The 'Statute Should be Liberally Construed in Order to Effectuate the Bemedy for the £vils Which It is Designed to Cure. — " Where civil service laws have been adopted, they have been so adopted for the purpose of doing away with the evils which necessarily result from the ' spoils system.' These evils have been fully characterized as inefficiency, extravagance, the interruption of public business by place hunters, corruption of the electoral franchise, and political as- sessments." • * * " To do away with the onerous burden of this • The foregoing Bummary of civil service legislation in the various States le, to a considerable extent, an abstract from the report of the United States Civil Service Commission for 1S97-1898. The Civil Sekvice Law. 9 curse (the * spoils system') In the cities of Illinois, the Illinois Act of March 20, 1895, was passed by the Legislature of that State." * * ♦ " In construing the act, the court must follow the primary rule in the construction of all remedial acts, to-wit: to keep constantly in mind the evils sought to be remedied by the act. * * * Considering the abuses sought to be remedied and the object and purposes of the law in establishing the merit system, a liberal construction of the act should be made in order to effect the purpose intended." Opinion of the Cir- cuit Court of Cook county, Illinois, rendered May 23, 1900, in the cases of Mather v. Kerfoot, People ex rel. v. Ptacek, and same against various other parties defendants; memorandum of the opinion in these cases appears in Chicago Civil Service Commission's Report for 1900, page 84. § 2. Definitions. — When used in this chapter, 1. The term " Commission " or " State commission " means the State Civil Service Commission. 2. The term " municipal commission " means the municipal civil service commission of a city.^ 3. The " civil service "^ of the state of New Tork or any of its civil divisions or cities includes all offices and positions of trust or employment* in the service of the state or of such civil division or city, except such offices and positions in the militia and the military departments as are or may be created under the provisions of article eleven of the constitution. 4. The " state service " shall include all such offices and posi- tions in the service of the state or of any of its civil divisions except a city. 5. The " city service " shall include such positions in the ser- vice of any city. 6. The term " appointing officer " signifies the officer, com- mission, board or body having the power of appointment to sub- ordinate positions in any office, court, department, commission, board, or institution. ITMs section is new. See 1 Heydecker's General Laws, 150.] Analogous Provisions: 1 Compare § 10. 2 The " civil service " includes both classified and unclassified service. See § 8. Everyone in the " civil service " Is affected by the pro- visions of this law, although not everyone is subject to examination, and not everyone is in the " classified " service. 3 Compare cases cited under § 25. iO The Civil Service Law. Public Officials and Employees — Who AreP (See also § 25). Em- ployees of the University of Buffalo, State Forestry College, State Veterinary College, and College of Agriculture, are not in the civil service of the State, within the meaning of that term as used in chapter 370 of the Laws/of 1899. In each instance, the State seems to have made an appropriation to the institution affected, upon the consideration that such institution would do certiain things supposed to be beneficial to the State. In no instance does it appear that the State, by any of its officials, is to have the power to employ any teacher, instructor, or other employee, to fix his compensation, or to remove or suspend him. All these functions seem to be reserved to the institutions affected and to their officers. The nearest approach to anything of this character is found in the act making the appro- priation for the Agricultural College, wherein it is provided that the college may, vrith the consent and approval of the Commissioner, employ teachers, etc., and that the work of such teachers shall be under the general supervision of the Commissioner. But the power of employment and removal is in the authorities of the college, and not In the Commissioner, and the powers conferred upon him are merely supervisory. The mere fact that the State, either purely as a donation or in consideration of benefits to be received by it, con- tributes to the support of an educational institution, cannot be regarded as controlling upon the question, and making them em- ployees of the State. Opinion of John C. Davles, Attorney-General of New York, dated May 26, 1899; reported in New York State Civil Service Commission's Report, 1899, Vol. 17, p. 366. Employees of Brooklyn Public Library are not In State service and are not subject to State civil service rules. Opinion of John G. Davies, Attorney-General of New York, dated July 21, 1899; reported In New York State Civil Service Commission's Report, 1899, Vol. 17, p. 368. A clerk in one of the Boston public departments rendered personal services under an agreement to be paid by the piece. It was claimed that this was not an employment, within the meaning of the Civil Service Act and rules, but a contract engagement outside of the rules. The Attorney-General of the Commonwealth gave it as his opinion that no such distinction between an " employment " and a " contract engagement " could be maintained. A case which the law Intends to include is not to be taken out of it, nor taken from the class in which it belongs and put it in another, merely by the form under which the person may be selected or engaged for the service, especially if such form is adopted for the purpose of evading the law. If the position is a position of employment, in the sense of the statute, the precise form of the contract of employment is immaterial. Opinion of A. E. Pillsbury, Attorney-General of Massachusetts, dated December 22, 1893; reported in pamphlet Issued by Massachusetts The Civil Service Law. 11 Civil Service Commission, containing civil service cases, decisions and opinions, p. 64. A person wlio has been designated by tlie New York commissioner of public worlsis as inspector of the work of laying gas mains, and whose wages are to be paid by the gas company, is not a general employee of the city and is not entitled to be kept in its service under chapter 464, Laws 1887, giving preference to veterans. People ex rel. Uhrle v. Gilroy, 60 Hun, 507; 39 St. Rep. 526; 15 N. Y. Supp. 242. Military Service not within Scope of the Law.— The civil service regulations do not apply to armorers and the janitors of armories. Goedel v. Palmer, 15 App. Div. 86; 44 N. Y. Supp. 301; affd. in 152 N. Y. 412, as Bryant v. Palmer. The present Civil Service Law expressly provides that the act shall not apply to the military service. The Veterans Acts, so- called, in existence prior to the present Civil Service Law, notwith- standing the broad language used, were also applicable only to the civil service of the State. Opinion of Smith, J., in People ex rel. Pine V. Martin, 53 App. Div. 19. The chief clerk in the department of the Inspector-General is a military oflBcer under the laws and Constitution of this State, and, as such, is exempted from the application of the civil service rules. This is equally true of all other clerks in the staff departments of the National Guard of the State of New York. Opinion of T. E. Han- cock, Attorney-General of New York, dated March 27, 1895; reported in New York State Civil Service Commission's Report, 1895, Vol. 13, p. 155. Decisions as to Whether Certain Positions are in the State or City Service.— Chapter 954 of the Laws of 1895, consolidated Kings county with the city of Brooklyn and provided that all liabilities including the salaries of the district attorney and his assistants, which were formerly county charges, should be debts of the city of Brooklyn, and the money for the payment of the same could only be drawn from the city treasury in the mode prescribed by the charter; held, notwithstanding this, that under the State Constitu- tion the district attorney is a county officer, and not an officer of the city, and is not subject to the civil service regulations applicable to positions under the city government. People ex rel. Crane v. Taylor, 17 Misc. 504. lEmployees of the Boards of Education in Cities of the State. — Employees of the boards of education of a city, which boards are not a part of the corporation of the city, but are local school cor- porations like every board of school district trustees throughout the State, and which are State and not city agencies, doing State and not city work and functions, cannot be deemed city or county em- ployees, since education is not city, village, county, or town business, but is a matter belonging to the State government. Such employees cannot claim protection from removal under the Veterans Act, Laws 13 The Civil Seevice Law. of 1892, chapter 577. Opinion of Gaynor, J., in Eidenour v. The Board of Education of the City of Brooklyn, 15 Misc. 418. Notwithstanding the Legislature makes it the duty of the common council of a city or of its mayor to appoint the trustees of the several school districts, and also the commissioners, instead of their being elected, and provides that the city treasurer shall ex-officio be their treasurer, the Legislature does not thereby make them city officers, nor, it seems, would they be city officers even though the limits and bounds of the school district were those of the city. It often happens that city officers are required by a statute to appoint individuals to do specified State duties, but that does not make such appointees city officers, or make the city liable for their acts. See Ham v. Mayor, 70 N. Y. 459; Saw Mill Co. v. City of Brooklyn, 71 id. 580; LoriUard v. Town of Monroe, 11 id. 392. Opinion of Gaynor, J., in Eidenour v. The Board of Education of The City of Brooklyn, 15 Misc. 418. Contra to the foregoing, seems to be the case cited in the next paragraph. The civil serrace commissioners of Chicago filed their petition in the Circuit Court of Cook county for a writ of mandamus to compel the board of education of the city to make requisition upon the civil service commission for certification of eligible candidates for posi- tions and places of employment classified under the Civil Service Act, which said board was about to fill by appointment thereto, and to make such appointments from persons whose names should be cer- tified by said commission. The board and its several members de- murred to the petition, and contended that the Civil Service Act did not apply to the board of education of the city of Chicago. * * * Section 11 of the Illinois Civil Service Act is as follows: "Officers who are elected by the people, or who are elected by the city council pursuant to the city charter, or whose appointment is subject to confirmation by the city council, judges and clerks of election, mem- bers of any board of education, the superintendent and teachers of schools, heads of any principal department of the city, members of the law department, and one private secretary of the mayor, shall not be included in such classified service." * * * The court said: "It would do violence to the plain intent of the act to hold that offices or places of employment in the city in nowise connected with the offices or purposes of the municipal corporation are included in the act It is plain from the scope and purpose oi' the statute, and the language employed in its different provisions, that offices and places of employment not so connected do not com? within its provisions. Taking this view, the appellants contend that the board of education of Chicago is a public corporation under the General School Laws of the State, separate and distinct from the city government, but, even if not a public corporation, that it is a State agency charged by public law with the duty of administering, within the limits of the city of Chicago, the School Laws, and with The Civil Sehyice Law. 13 the maintenance and management of the public schools in the city, and that as such public corporation or State agency, it is not subject to the civil service department of the city government." Held, after an elaborate consideration of the Illinois statutes and of their effect upon the relation of the school board to the city, that even if the effect of the school legislation in Illinois is to confer corporate powers upon the board of education or to make it a State agency for certain purposes, still the change has not been such as to discon- nect it from the city government and to authorize the courts to declare that the oflBces and places of employment under the board are no longer offices and places of employment in or of such city, but that the board of education of the city of Chicago is still con- nected with, dependent upon, and to some extent a part of, the municipal government of that city, and, as such, that its offices and places of employment fall within the operation of the Civil Service Act. In deciding whether a board or commission is a part of a city government, the question is not whether the board possesses cor- porate powers, and if so, what are their precise limitations, for, as said in Board of Water Commissioners v. People, 137 111. 660, "the mere fact that the Legislature saw fit, for purposes of convenience and of administration, to give It (the board of water commissioners) a corporate existence and invest it with certain corporate powers, did not prevent it from being simply a branch or an agency, created for a special purpose, of municipal government. Without the active oo-operation of the city council it would have been wholly unable to effect the object of its creation." See also McGurn v. Board of Education, 133 111. 122, where the same board was spolien of as " an organization which, in some points of view, is to be regarded as a subordinate department of the city government, and in others as an Independent municipal corporation." Opinion of Carter, C. J., in Brenan v. The People, 176 111. 620; reported in Fourth Annual Report, Chicago Civil Service Commission, 1898, p. 596. Bridge-tender. — Bridge Operated by State at Expense of a City. — The Lawrence street bridge, over the Erie canal, in the city of Albany, was constructed pursuant to chapter 88 of the Laws of 1879, which provided for the erection of the bridge, and that the same should be operated subject to the control of the State Superintendent of Public Works, but at the expense of the city of Albany. Held, that a bridge-tender of such bridge was an employee of the State, and in no sense in the civil service of the city of Albany, and the Super- intendent of Public Works was not required to apjwint bridge-tenders at these canal bridges in the city of Albany from the eligible list prepared by the board of civil service examiners of such city. Opinion of Chase, J., in Matter of Agar, 21 Misc. 185. Deputy County Clerk Appointed by Appellate Division Justices. — An assistant to the special deputy clerk to the clerk of the county of New York for one of the parts of the Supreme Court, Special Term, 14 The Civil Service Law. although receiving his appointment from the justices of the Appellate Division of the Supreme Court, pursuant to sections 4 and 11 of chapter 553 of the Laws of 1895, is, nevertheless, a county oflBcer and not a State officer, since the county clerk is a county officer and the assistant mentioned is one of his assistants, and is his represen- tative in one of the parts of the Supreme Court, and there receives fees in behalf of the clerli of the county and is the custodian of them until he turns them over to his superior, the county clerk. The povrer of appointment given by the statute to the Appellate DivlsioUr held to have been granted by the Legislature so that the personnel of the county clerk's assistants might in no event be objectionable to the court. Opinion of Cohen, J., in People ex rel. Glaser v. Coler; report of New York State Civil Service Commission for 1898, p. 558. Employees of the Conuuissionesis of the Board of Electrical Con- trol. — The Commissioners constituting the Board of Electrical Control, created under chapter 534, Laws of 1884, chapter 499, Laws of 1885, and chapter 503, Laws of 1886, were State and not city officers. These acts were general and not local. A law relating to particular persons or things as a class is general, while one relating to particular persons or things of a class is local. The acts in question related to a class as a whole, and not to any particular elements of such class. The class consisted of every city in the State having a population of over 500,000, and under the authority of the " Matter of Church " (92 N. Y. 1), these various acts were not local but general acts. They were general acts directing a general public improvement in cities of a certain size within the State. The appointees of these Commissioners were none the less State employees because in cities having a popula- tion exceeding 500,000 and less than 1,000,000, the mayors of such cities were authorized to appoint them, and in cities having a population exceeding 1,000,000, the mayor, comptroller, and commissioner of pub- lic works of such cities were authorized to appoint. The acts pro- vided for the term of office of the Commissioners and that they might be removed by the Governor upon an opportunity of being heard, and also that the salaries of each of the Commissioners should be paid by the Comptroller of the State, the amount thereof to be collected by said Comptroller from the different companies owning and using wires, etc., in said cities. A certain amendatory act added the mayor, for the time being, to such commission, and continued its existence, but provided for the removal of the Commissioners (except the mayor) by the Governor only, and gave the Governor power to fill vacancies in the board (except the mayor). It should be noted that the duties imposed upon these officials did not relate to corporate powers confined to a city, or that the members of the cor- poration of said city alone were interested in the proper performance of them. The people of the State at large were Interested in the safety and condition of the streets and highways in all the cities in the State. Neither the corporation of New York city or of any other The Citil Service Law. 15 city was given power under the acts to control the oommlssion m the discharge of their duties. They could not remove them. The? Commissioners were independent of the corporation as to the tenure of their ofBce. They were paid by the State and were removable by the Governor. The fact that their appointment was made by the local authorities, and that the mayor was joined with them, had no- Influence upon the question. (Citing 63 How. Pr. 104; 62 N. Y. 160, 170; Heiser v. The Mayor, etc., 104 N. Y. 68; distinguishing People ex rel. Byan v. Civil Service Commissionei-s, 17 Abb. N. C. 64.) Opinion of Charles F. Tabor, Attorney-General of New York, dated March 14, 1888; reported in Sixth Annual Report of the New York State Civil Service Commission, 1888, p. 271. Employees of the Courts of General and Special Sessions. — There has been much conflict of opinion as to whether employees of the Courts of General and Special Sessions were in the State or in the municipal service. In 1886 Attorney-General O'Brien rendered an opinion in which he said that employees of the Courts of General and Siiecial Sessions in New Yorls city are in the State service, and not in the city service. The power to create courts is an express one, conferred upon the State Legislature by the Constitution, and can only be exercised in conformity therewith. The Code of Civil Procedure, moreover, has expressly declared that such courts are State courts. Section 1, title 1, is headed " The courts of the State," and then enu- merates them, and in such enumeration appear " The Court of General Sessions of the Peace in and for the city and county of New York," and " Courts of Special Sessions of the Peace in each town, and in certain cities and village." Opinion of D. O'Brien, Attorney-General of New York, dated January 13, 1886; reported in Third Report of New York State Civil Service Commission, 1885, p. 87. In 1897 the Court of Appeals was called upon to pass upon the ques- tion as to whether the clerk of the Police Court in Syracuse was in the State or municipal service. The court said: "The office of police justice of Syracuse is created by the charter of the city; and the salary of the clerk of the Police Court is fixed by the common council of the city and is payable out of the funds thereof; It follows that the clerk of the Police Court is In the civil service of the city of Syracuse, not of the State, and the mayor of that city has power to provide that the office must be filled by a person certified as eligible thereto by the civil service examiners of that city." Opinion of Bartlett, J., in People ex rel. Sears v. Tobey, 153, N. Y. 381; modify- ing People ex rel. Sears v. Tobey, 8 App. Div. 468; 17 App. Div. 621. Follorwlng this, Attorney-General Hancock, in 1897, gave it as his opinion that under the provisions of the Civil Service Law, appoint- ments in the City Court and Court of General Sessions of the city of New York come under the jurisdiction of the civil service commission of the city of New York, and not of the State. Such appointees are clearly municipal officers. Opinion of T. E. Hancock, Attorney-General 16 The Civil Service Law. of New York, dated December 17, 1897; reported In New Tork Civil Service Report, 1897, Vol. 15, p. 428. Inspector of Health and Streets Appointed by Common Council. — An inspector of health and streets appointed by the common council of Buffalo is a city officer under the municipal charter, and as such, he is subject to the requirements of the Civil Service Law. Rogers v. The Common Council of the City of Buffalo et al., Supreme Court, Erie county, July 31, 1888. Report of State Civil Service Commission, 1888, Vol. 6, p. 213. Aqueduct Commissioners Appointed for City by Iiegislatuxe. — The aqueduct commissioners created and appointed by chapter 490, Laws of 1883, were local officers of the city of New York; the functions they were to perform were for the peculiar corporate and pecuniary benefit of the corporation of the city; under adjudicated cases, the corporation of the city of New York was liable for their acts; they were the agents of the city, and the act expressly recog- nized the city's liability upon their contracts. Such being the case, the appointees and employees of the aqueduct commissioners were not to be examined by the State Civil Service Commissioners aa State officers, but by the civil service board of the city of New York as local city officers. If they were the agents of the city, they were not the agents of the State. The Legislature had simply exercised in their appointment a power which in the metropolitan police case It was held it possessed, to appoint new local city officers, but the exercise of such power of appointment did not change the local char- acter of the office or of the officer. Opinion of Lawrence, J., In People ex rel. Ryan v. The Civil Service Board, 41 Hun, 287; affd., 103 N. Y. 657. Warden of a Prison Appointed by IVCiinicipal Authorities. — The earlier Veteran Acts gave the right to a hearing upon specific charges before removal, only to " persons holding a position by ap- pointment in any city or county of this State, receiving a salary from such city or county," and did not in express terms give this right to a State officer, tinder that law it was held that a warden of a city prison, although he was not such an agent or servant of the muuicl- I>allty as would render the latter liable for his acts of negligence or misconduct, yet, since he was appointed by local authority and his salary or compensation was paid by the municipality and his duties as keeper of the prison were limited exclusively to the city and county In which It was located, held a position by appointment In the city and county of New York, and was, therefore, within the pur- pose and the general policy of the statute as to the removal of veterans. Opinion of O'Brien, J., in People ex rel. Fallon v. Wright, 150 N. Y. 444, afCg. 7 App. Dlv. 185. Under the present law. State, as well as city and county employees, are protected if veterans. The Civil Seevice Law. 17 Conurdssioiiers of New York and Brooklyn Bridge. — The com- missioners of the New York and Brooklyn bridge are municipal offi- cers, under the provisions of the statute creating the office, and the acts amendatory thereof. Opinion of Bartlett, J., in People ex rel. Baird v. Nixon, 158 N. Y. 221. Commissioner of Jurors for Boroug'hs of IVEanhattan and The Bronx. — The commissioner of jurors for the boroughs of Manhattan and The Bronx is a city and not a county officer, and as such was amenable to the proivisions of chapter 186 of the Lajws of 1898, provid- ing that in case of removals of persons in the competitive class, rea- sons in writing must be filed and an opportunity to explain be given. Opinion of Scott, J., in People ex rel. Denholm v. Welde, 27 Misc. 607. Health Officer Appointed Pursuant to City Charter. — Section 10 of the act incorporating the city of New Rochelle (chap. 128, Laws 1899) designates the health officer as one of the officers of the city. Under that act and under subdivisions 4 and 5 of section 2 of the Civil Service Law (chap. 370, Laws 1899) it seems clear that for the purposes of classification under the Civil Service Larw, the health officer of the city is to be deemed a city official. Opinion of John C. Davies, Attorney-General of New York, dated May 25, 1899; reported in New York State Civil Service Commission's Report, 1899, Vol. 17, p. 365. §3. State Civil Service Commissior) — The governor is author- ized to appoint, by and with the advice and consent of the Sen- ate, three persons, not more than two of whom shall be adher- ents of the same political party, as civil service commissioners, and said three commissioners shall constitute the state civil ser- vice commission. They shall hold no other official place under the state of l^ew York. The governor may remove any com- missioner, and any vacancy in the position of commissioner shall be so filled by the governor, by and with the advice and consent of the senate, as to conform to said conditions for the first selection of commissioners. The three commissioners Bhall each receive a salary of [two] three thousand dollars a year, and each of said commissioners shall be paid his neces- sary traveling expenses incurred in the discharge of his duty as a commissioner. ISee 1 Heydeoker's General Laws, 151. Matter in hrackets was struck out, and matter in italics was inserted ly chap. 66, Laws of 1900. With this exception, this section is the same as section 1 of the original Civil Service Law of 1883.] Constitutionality of Provision as to Partisan Affiliations of the Commissioners. — The provision for the appointment by the Governor 2 18 The Civil Seetice Law. and for the confirmation by the Senate, of three persons as State Civil Service Commissioners, not more than two of whom shall be adherents of the same party is not a violation of article I, section 1 of the Constitution, which declares that " no member of this State shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers;" nor is it a violation of that part of section 6, article 1, which delares " that no person shall be deprived of life, liberty, or property without due process of law." Opinion of Peckham, J., In Kogers v. The Common Council of the City of Buffalo, 123 N. Y. 173. § 4. Officers and Employees of the Commission . The commis- sion may elect one of its members to be president, and may em- ploy a chief examiner, a secretary, and such other officers, clerks and examiners as it may deem necessary or proper to carry out the purposes of this act, and such employees shall hold office during the pleasure of the commission. The chief examiner shall be entitled to receive a salary at the rate of three thousand six hundred dollars a year, and he shall be paid his necessary traveling expenses incurred in the discharge of his duty. The secretary, and other officers, clerks and examiners shall receive salaries to be fixed by the commission, and the secretary shall also be paid his necessary traveling expenses incurred in the dis- charge of his duty. The commission may select suitable persons in the official service of the state or any of its civil divisions, after consulting the head of the department or office in which such persons serve, to act as examiners under its direction. Per- sons so selected shall be entitled to compensation from the com- mission for their necessary expenses occasioned by the service actually rendered, in addition to the regular service required in the department or office where they are regularly employed. The compensation of examiners shall not exceed five dollars per day, except in the case of special and expert examiners em- ployed in the preparation of questions and rating of candidates ; the commission shall not expend or authorize the expenditure of moneys for any purpose in excess of the sums appropriated therefor by law. [The above section is section 3 of the original Civil Service Law, with various amendments relating to administration. See 1 Heydecker's Gen- eral Laws, 151.] Statutory Changes.— There are a number of points of difference be- tween section 4 of the present law and section 3 of the original law, al- The Civil Seevice Law. 19 though In general they relate to the same subject-matter. These differ- ences pertain principally to matters of office administration in the office of the commission. The most important difCerence is the express pro- vision for paying special and expert examiners more than $5 per day, for certain kinds of 'worls; also for paying to examiners -who may be otherwise engaged in the official service the amount of their expenses. § 5. Rooms and Accommodations It shall be the duty of the trustees of public buildings to cause suitable and convenient rooms and accommodations to be assigned or provided, and to be furnished, heated and lighted, at the capitol in the city of Albany, for carrying on the work and examinations of said commission, and said commission may order the necessary sta- tionery, postage stamps, an official seal and other articles to be supplied, and the necessary printing to be done for its offi- cial use. It shall be the duty of the officers of the state of New York or of any civil division thereof, at any place where ex- aminations are directed by the commission or its rules to be held, to allow the reasonable use of public buildings, and to heat and light the same for holding such examinations, and in all proper "vays to facilitate the same. [The first sentence of the section corresponds to section 4 of the original law, although it is not exactly the same. The second sentence corresponds to the last sentence of section 3 of the original law. See 1 Beydecker's General Laws, 152.] § 6. The Powers and Duties of the Commission. — The state civil service commission shall First. Prescribe, amend and enforce suitable rules and regu- lations for carrying into effect the provisions of this act and of section nine of article five of the constitution of the state of New York, as herein provided. The rules prescribed by the state and municipal commissions pursuant to the provisions of this act shall have the force and effect of law. Second. Xeep minutes of its own proceedings and records of its examinations and other official action. Third. Make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this act and the rules and regulations prescribed thereunder, concerning the action of any examiner or subordinate of the commission and any person in the public service, in respect to 20 The Civil Seevice Law. the execution of this act, and in the course of such invesitiga- tions each commissioner and the secretary and the chief exam- iner shall have power to administer oaths. Fourth. Have power to subpoena and require the attendance in this State of witnesses and the production thereby of books and papers pertinent to the investigation and inquiries hereby authorized and to examine them and such public records as it shall require in relation to any matter which it is required to investigate. And for the purposes of the examination hereby directed, the commission possesses all the powers conferred by the legislative law upon a committee of the legislature or by the code of civil procedure upon a board or committee, and may invoke the power of any court of record in the state to compel the attendance and testifying of witnesses and the production thereby of books and papers as aforesaid. Fifth. Make an annual report to the governor for transmis- sion to the legislature, showing its own action, the rules and regulations and the exceptions thereto in force, and the prac- tical effects thereof and any suggestions it may approve for the more effectual accomplishment of the purposes of this act. Sixth. Meet in Albany at least once in each calendar month, except the month of August, and hold such other meetings as the needs of the public service may require. A majority of the members of the commission shall constitute a quorum, [Section 2 of the original Civil Service Act icith important amendments. See 1 Heydecker's General Laws, 152.] Statutory Changes.— The differences between section 6 of the pres- ent law and section 2 of the original law (notwithstanding the sec- tions relate to the same general subject-matter) are quite marked. These, among others, may be noted: 1. Under the present law the duty of prescribing civil service rules falls, in the first instance, upon the commission, not upon the gover- nor. The commission now prescribes (subject to the Governor's ap- proval); formerly the commission aided the Governor in the prepara- tion of rules. 2. The rules are now expressly declared to have the force of law. 3. There is no longer any statutory direction as to the nature, scope and contents of the rules to be prescribed, other than that they shall be such as to carry Into effect the provisions of the law and of the Constitution. The first sentence of the first paragraph Is the same as the first paragraph of section 2 of the original law, but amended; the second The Civil Seetioe Law. 21 sentence Is new in form. Compare, however, second part of para- graph first of section 2 of original law. Subdivision 2 of section 6 of present law corresponds to subdivision 3 of section 2 of old act. Subdivision 3 of section G of present law is same as subdivision 4 of section 2 of old law, except that by present law the chief ex- aminer has the power to administer oaths. Subdivision 4 of section 6 of present law is analogous to the first part of section 16 of the old act; but by the present law it will be seen that the commission in subpoenaing witnesses has the power of a legislative committee as well as the powers conferred by the Code upon committees and boards. It may also invoke the aid of the courts to compel attendance of witnesses. Compare section 26 of present act. The fifth paragraph of section 6 of present law is a re-enactment of subdivision 5 of section 2 of original law. Subdivision 6 of section 6 of present act is new. TXsual Practice or Custom has not the Force of a Rule. — It appeared that it had been the practice of the board of civil service commis- sioners of a certain city when a position was transferred from one schedule to another to make no appointments for the position in the new schedule until all the persons who were on the eligible list for Buch position from the old schedule had been appointed, but it was not alleged that any rule has been made by the board upon that sub- ject, nor that any official action had been taken upon this question, the secretary simply swearing that it had been the practice; held, that a mere practice, unsanctioned by any express resolution of the board, could not have the force and effect of a rule or resolution. Opinion of Ingraham, J., in Carroll v. The New York City Civil Ser- vice Boards, 5 App. Div. 164. Bules Having the Force of Law, Delegation of Power to Legislate. — In 1884 the State of Massachusetts passed a Civil Service Act. The Supreme Court of Massachusetts, being requested by the House of Representatives of that State to give their opinion upon the constitu- tionality of certain provisions of the act, held that the Legislature has the constitutional right to provide for the appointment of civil service commissioners, and to delegate to them the power to make rules (not Inconsistent with existing laws) to guide and control their discretion and the discretion of the officers of cities, in whom the appointing power is vested; that the duty of determining and ascertaining the qualifications of such officers and servants cannot be performed di- rectly by the Legislature, but must be delegated to certain officers or agents; that it is not a delegation of power to enact laws but merely a delegation of administrative powers and duties; that there was no provision of the Constitution of Massachusetts which pre- vented the Legislature from enacting that such rules when duly made should be binding upon the officers and citizens to whom they apply, and that they might be enforced by suitable penalties; that the 22 The Civil Seevice Law. power of the Legislature to make or authorize local laws for tha administration of local afCairs is beyond question. Opinion of the Justices, 138 Mass. Rep. 601; quoted as applicable to the Illinois Civil Service Act in the opinion of Magnider, J., in People ex rel. Aiken v. Kipley, 171 111. 44. The Civil Service Act, passed by the Legislature of Illinois on March 20, 1895 [in many respects similar to that of New York] is not unconstitutional in requiring examinations, as therein provided for, as tests for appointments to public oflBce, nor in requiring promo- tion to be made in the manner therein specified, nor in attaching a pen- alty for the violation of the provisions of the act. The act does not delegate legislative power to the Civil Service Commissioners by au- thorizing them to make the rules therein provided for. Opinion of Magruder, J., in People ex rel. Aiken v. Kipley, 171 111. 44. The Attorney-General of the United States has said that the sub- jects of the extent and manner of the exercise of a Federal appoint- ing power and of the duties, relations, number, compensation, pro- tection, and encouragement of those in the public service of the Fed- eral government to which civil service rules naturally relate, would seem to be within the scope of legislative authority. 4 Opins. of Atty.-Gen. U. S. 165; Debates in Senate, Globe (1869), p. 17, etc. Legal Effect of Bules Prescribed by TI. S. Civil Service Commis- sion. — ^In discussing the porwer of the United States Civil Service Com- mission to make rules restricting the right of removal. Judge Cox, in Woods V. Gary, said: " It is claimed that the Civil Service Commission Is empowered to prepare rules in aid of the President for carrying this (the Civil Service) act into effect, and that said rules, when prepared and promulgated, have the force and effect of law, and that such effect is to be given to the rules under which the complainant seeks relief. There can be no doubt as to the power of Congress or any other legis- lative body to delegate to subordinate authorities the power to make rules and regulations within certain limits, which, when made, will have the force of law. Thus, corporations, municipal or private, may be authorized to make by-laws, and police commissioners, boards of health, and fire commissioners may be authorized to make regulations which have the effect of laws. But if any rule prepared by this Civil Service Commission, whether published by the President or not, should have the effect of repealing or modifying an act of Congress, it would be an act of legislation and not a regulation of a mere executive character, which it was clearly the object of this law to authorize. It is a grave question whether Congress could delegate to the President or to any board of commissioners jointly with the President the au- thority to do any act which is equivalent to legislation. There is a uniform current of authorities in the State courts against the power of any Legislature so to delegate their authority. See the authorities collected in the American and English Encyclopedia of Law, volume 3, page 698, under the proposition: 'It is an established proposition of constitutional law that the power conferred upon the Legislature The Civil Service Law. 33 to enact laws cannot be delegated by that department to any other body or authority.' " Reported in Fourteenth Report of the United States Civil Service Commission, 1896-1897, p. 209; aJso in 25 Wash- ington Laivr Reporter, 591. As to the powers of the President and of the United States Civil Service Commission, it has been said: " Neither the President nor the Civil Service Commission is clothed with legislative powers. Neither <;an change the law, either by repeal or by making a new enactment. Congress cannot delegate its legislative powers either to the President or the Civil Service Commission. The rules promulgated which place office of deputies in the marshal's office in the classified civil list a,nd restrict their removal, are not a statute. The courts of chancery have no jurisdiction or authority to enforce such rules or regulations. Their enforcement lies within the domain of the executive depart- ments, which possess ample power to enforce the proper observance of and subordination to the rules and regulations promulgated by the Executive for the government of those employed in any executive department of the government." Opinion of Judge Baker, in Taylor v. Kercheval, 82 Fed. Rep. 497. Concerning the Federal civil service rules it has been said: " Con- gress is just as incapable of surrendering its legislative authority to the President as to the commission; and is just as little to be under- stood as intending to do so in the one case as in the other. The civil service rules restricting removals, viz., those adopted by the United States Civil Service Commission on November 2, 1896, and July 27, 1897, whether the President or the commission, or both, be the authors of them, are not such as the act of January 16, 1883, known as the Federal Civil Service Act, authorized to be established. They are ultra vires and void. [They do not have the effect of law.] The President may lay down rules for the internal policy of his ad- ministration, and may require his chief executive officers, dependent upon his pleasure for their tenure of office, to conform to them, or else to sever their official relations with him, and in that sense the rules mentioned were within his political and executive authority. But the enforcement of such rules is a matter between the President and his Cabinet, and not a matter for the courts, or one in which a subordinate has any legal interest. These rules were not such as the Civil Service Act authorized, and did not derive any efficacy from that act." Opinion of Cox, J. in Woods v. Gary. Reported in the Four- teenth Report of the United States Civil Service Commission, 1896- 1897, p. 211; also in 25 Washington Law Reporter, 591. Discussing the United States civil services rules, limiting the power of removal. Judge Jenkins has said: "The President may make any reasonable regulation concerning the appointment, the removal, or the tenure of the subordinates whom he has the power to appoint, but these rules it seems must be enforced by the executive department itself. The aid of the courts cannot be invoked to enforce them. This (section 8 of United States ciAril service rule II) is an au- 24 The Civil Service Law. thoritative expression by the Executive of the United States of his de- sire and command to his subordinates with respect to removal from ofllce of those coming withing the scope of the civil service regu- lations. Possessed by the Constitution of the power of appointment and removal, except, possibly, as he may be therein restricted by act of Congress, the Executive has the right to regulate for himself the manner of appointment and removal. He may direct his subordinates who exercise under him in certain cases the power of appointment and removal with .respect thereto, and may regulate the manner in which they may act for him; but this is an administrative order of the Executive, not done in compliance with any law or in regulation of the execution of any law enacted by Congress restricting his right of removal, but is simply an instruction to those who hold positions by virtue of his appointment of the manner in which they shall dis- charge their duties in respect to the removal of their subordinates. The order is not the law of the land; it is not the emanation of the lawmaking power, but is merely a regulation adopted by the Execu- tive, as he rightfully might, in regulation of the conduct of those who are subject to his authority. He made it, and may at his pleasure rescind it." Opinion of Jenliins, J., in Carr v. Gordon, 82 Fed. Rep. 373. To same effect. Page v. Moffett, 85 Fed. Rep. 38; Morgan v. Nunn, 84 Fed. Rep. 551; Fleming v. Stahl, 83 Fed. Rep. 940. Scope of Rules.— Section 2 of the United States Civil Service Law provides for " open competitive examinations." Attorney-General Olney has said in an official opinion, dated August 29, 1893, reported in Tenth Annual United States Civil Service Report, p. 133, as follows: " I think that this phrase implies the privilege of competition in every citizen not specially excepted by law. If this view be correct, then if an applicant can show that he possesses the actual 'bona fide residence ' (required by statute as a condition of entering the examina- tion), at the time of applying, for the period required, and can obtain the required certificates to that fact, he is entitled to demand an ex- amination. The President and commissioners can make all reasonable regulations as to the nature of the testimony required concerning residence. If a question of fact is presented by the papers, the de- cision of the commission is conclusive; but I do not think that the commission can narrow the definition of the statutory phrase." They could not, for example, where bona fide residence was required by statute, go farther and demand actual and continuous physical presence at the place claimed as the place of residence, either as a condition of entrance to examination, or as the only admissible, or as the sole conclusive proof of residence. Power of the Ijegislature to Create a Body for the Purpose of Determining and Ascertaining Qualifications of Public Appointees. — By the present Constitution of New York, the Legislature is charged with the duty of enacting laws to give effect to the civil service pro- vision of the Constitution. This unquestionably includes the power of creating a commission or other suitable machinery, but, independent The Civil Seevicb Law. 35 of that constitutional provision, the Legislature has this power. In giving its opinion to the Massachusetts House of Representatives, as to the constitutionality of the Civil Service Law of that State (chap. 320, Laws 1884), the Supreme Judicial Court said (138 Mass. 601): "The Constitution (of Massachusetts) in the fourth article of the first chapter of "The Frame of Government," confers upon the Gen- eral Court full power and authority to make all manner of wholesome and reasonable laws not repugnant to its provisions, to provide for the naming and settling all civil officers now provided for in the Constitution, and to set forth the duties, powers and limits of such officers. In the exercise of this power the Legislature has the right to pre- scribe the qualifications of all officers and servants of the public not provided for In the Constitution. From the nature of the case, the duty of determining and ascertaining the qualifications of such offi- cers and servants cannot be performed directly by the Legislature, but must be delegated to some officers or agents. It has been the constant and necessary practice of the Legislature to confer the power of appointing such subordinate officers and servants upon some su- perior officers of the State, or upon the authorities of the cities or towns, leaving the question of the qualifications of the persons to be appointed entirely to the discretion of the appointing power. The object of the statute before us is to provide for a Board of Commis- sioners, who shall make rules for the selection of persons to fill such offices in the government of the Commonwealth, and of the several cities thereof, and supervise the administration of such rules. We think the Legislature has the constitutional right to provide for the appointment of such Commissioners, and to delegate to them the power to make rules, not inconsistent with existing laws, to guide and control their discretion and the discretion of the officers of the State or of the cities in whom the appointing power is vested. This is not a delegation of the power to enact laws; it is merely a delegation of administrative powers and duties, and there is no provision of the Constitution which prevents the Legislature from enacting that such rules, when duly made, shall be binding upon the officers and citizens to whom they apply, and that they may be enforced by suitable penalties, as provided in the last section of the statute." Opinion of the Justices, 138 Mass. 601. Judicial Functions of Commission. — The contention that the Illi- nois Civil Service Act is unconstitutional and void upon the alleged ground that it delegates to the Civil Service Commissioners the exer- cise of judicial functions by certain provisions [similar to those con- tained in section 6 (3 and 4) of the New York Civil Service Act] is not 'well founded. Opinion of Magruder, J., in People ex rel. Aiken v. Kipley, 171 111. 44. Bight of the Commission to Compel Production of Books and Papers. — In the recent case of Lindblom v. Weber and Kanter, the right of the Chicago Civil Service Commission, under section 33, of 36 The Civil Seevice Law. the Illinois Civil Service Act, to compel the production of certain documentary evidence in possession of the defendants, claimed by the commission to be pertinent to an investigation then pending be- fore it, was upheld. (For memorandum of this decision, see Chicago Civil Service Commission's Report for 1900, page 81.) § 7. Duties of Public Officers It shall be the duty of all offi' cars of the state of New York or of any city or civil division thereof to conform to and comply with and to aid in all proper ways in carrying into effect the provisions of this act, and the mles and regulations prescribed thereunder and any modifica- tion thereof.^ No officer or officers having the power of ap- pointment or employment shall select or appoint any person for appointment, employment, promotion or reinstatement ex- cept in accordance with the provisions of this act and the rules and regulations prescribed thereunder.^ Any person em- ployed or appointed contrary to the provisions of this act or of the rules and regulations established thereunder, shall be paid by the officer or officers so employing or appointing, or at- tempting to employ or appoint, him, the compensation agreed upon for any services performed under such appointment or employment, or in case no compensation is agreed upon, the actual value of such services, and any expenses incurred in. connection therewith, and shall have a cause of action against such officer or officers or any of them for such sum or sums and for the costs of the action. No public officer shall be re- imbursed by the state or any of its civil divisions for any sums so paid or recovered in any such action.^ [New in form; latter half of section new in suMtanee. See 1 Hey- decker's General Laws, 153.] History of the Section. — i 'Provisions analogous to those contained In the first sentence, appeared In subdivision 1 of section 2 of original law. Compare section 6 (1) of present act as to force and effect of civil service rules; also compare sections 18 and 19 as to certain specific duties Imposed upon appointing officers. The State civil service rules and regulations are printed in this volume. 2 Provisions analogous to those of the second sentence, but with important differences as to laborers, appeared in section 7 of old law, first two sentences. Compare sections 12, 13, 15, 16 and 23 of the present law, and rules 11, Iv, vl, vili, xiT, xv, xvi, xvii, xix and xxii. 3 The last two sentences of section 7 are new. The Civil Seetice Law. 37 Constitutionality.— As to the constitutionality of these restrictions upon a power of appointment given by the Constitution, see the cases ■cited under the title " Constitution," in this book; also under section 13. Determination of Appointing Power as to Qualifications of Ap- plicant not Beviewable upon Mandamus Proceedings. — The case of The People v. The Common Council, 78 N. Y. 33, holds among other things: " Where the duty of selecting the person to be employed Is Imposed by law upon a municipal body (a common council), and the question ■whether he possesses the requisite qualifications is one of fact to be determined by it, no particular mode of determination being provided Iry law, and said body has exercised the power and made the selection, its action cannot be reviewed by mandamus; nor can it be compelled by that proceeding to appoint a particu- lar person on his allegation that he and not the person actually selected possesses the prescribed qualifications. Where the subordi- nate body is vested with power to determine a question of fact, th6 duty is judicial, and it cannot be compelled by mandamus to decide in a particular way, however, clearly it be made to appear what the decision ought to be." (See also 108 N. Y. 635; 104 id. 100.) Quoted in People ex rel. Lockwood v. The Trustees of the Village of Saratoga Springs, 54 Hun, 16; 26 St. Rep. 54. No Kules, no Appointments.— Section 7 of the Civil Service Law, providing that " no officer or officers having the power of appoint- ment shall select any person for appointment except in accordance with the provisions of this act and the rules and regulations prescribed thereunder," prevents any appointment until such time as the rules and regulations required by the act should have been established. The fact that there are in existence no rules regulating the appoint- ment of civil officials does not give a free hand to every person who has occasion to make appointments after the passage of the act and be- fore the establishment of the rules. Opinion of Rumsey, J., in People ex rel. Chamberlain v. Knox, 45 App. Div. 518. Compare, however, the McBride case recently decided by the Appellate Division, Second Department. In that case it appeared that a person .who was not upon an eligible list was appointed as nurse in the Randall's Island Asylum; but before her appointment the department wrote the secre- tary of the civil service commission requesting an eligible list of nurses in order to make appointments therefrom, and received an answer that no such lists were in existence; the court (Second De- partment), said: " The Greater New York charter (Lanvs of 1897, chap. 378), chapter 13, imposes upon the department the duty of maintaining the Randall's Island Asylum for the care of sick chil- dren. Necessarily incident to that maintenance are nurses. It is true the plalntifC's appointment Is within the requirement of the Civil Service Law. The object of that law is to Increase the efficiency of the civil service, but we cannot construe It as intended by the Legis- lature to bring an end to the business of caring for chirdren in the 28 The Citil Sekvice Law. asylum. The duty -was imposed upon the department to make pro- vision for continuing the asylum, and there -was an exigency which required the department to provide nurses for the care of the children. This duty is a public one, to which the administration of the Civil Service Law is ancillary. It was fulfilled by the appointment of the nurse, and she served as such." For these reasons a Judgment in her faivor for the amount of her salary was affirmed. Opinion by Goodrich, P. J., McBride v. City of New York, 56 App. Div. 520. It seems very strange that in this opinion no consideration was given to the provisions of paragraph 1 of section 14 of the law which were evidently designed to meet this very kind of exigency. Kight of Appointment Given by Statute — No Classification.— Where the Legislature has established a method by which a classifi- cation of the ofiices of a city shall be provided, which shall include offices to be filled after a competitive examination and those which are not to be filled until such classification is made and the general offices of the civil service are so classified, it would seem that the Legislature would have power to prescribe a method of appointment of these officers, especially of those holding positions of confidence and ti'ust, such as for instance that of superintendent of an alms- house, and if the Legislature has given to an officer power to appoint and remove his subordinates, and the latter have not been classified as competitive, he may legally appoint without holding a competitive examination. Opinion of Ingraham, J., in People ex rel. Terry v. Keller, 35 App. Div. 493. It is to be noted that this decision was rendered under the law before it contained the provision now appear- ing as the first sentence of section 13. If the effect of the decision has been in any way impaired by that change, it is, however, of im- portance in determining whether appointments made prior to the enactment of this provision in section 13 were legally made. Under the provisions of section 6, chapter 354, Laws 1883, em- ployees and subordinates in the public service of the State who had not been classified at the time of their appointment (prior to the con- ttitutional amendment of 1894) could not fairly be considered as occu- pying positions in violation of the Civil Service Law. In those cases where the rules at that time were not sufficiently specific to give the appointing officer and his subordinate intelligible information as to whether the appointment came under the provisions of the law, neither of them should be charged with its violation, and payment of compensation should not be refused when the subordinate in such case had not been examined. Opinion of T. E. Hancock, Attorney-General of New York, dated January 2G, 1894; reported in New York State Civil Service Commission's Report, 1894, Vol. 12, p. 110. Contract for Services. — Where a board enters into a so-called con- tract of employment with a physician for his services as city physician for a period extending beyond the term of the board making the contract, it is not binding upon their successors. Opinion of Chase, The Civil Sbkvicb Law. 39 J., in Connelly t. Commissioners, 32 Misc. 489. Compare cases cited under section 2, under title " Public Officials, Who Are." When is Superior not Obliged to rill Existing VacanciesP — If a city official is empowered to determine the number of clerks and sub- ordinates which he requires, it is discretionary with him whether or not he shall fill vacancies. Under the Veteran Act, a veteran has no right to a writ of mandamus to compel the city official to notify the Civil Service Commission whether there are vacancies in his depart- ment. People ex rel. Tregaskis v. Palmer, 9 App. Div. 252; 41 N. Y. Snpp. 494. Compare, however, next paragraph. The Supreme Court of Illinois has, in a proper case, directed the Issuance of a writ of mandamus to the superintendent of police, di- recting and commanding him to notify the Civil Service Commissioners of vacancies existing in his department. See opinion of Magruder, J., in People v. Kipley, 171 111. 44. A similar case was that in which a rsvrit of mandamus .was issued by Illinois Supreme Court to the city clerk of Chicago, directing him to notify the civil service com- mission of the city of Chicago of all vacancies existing, or which at any time should exist in places or positions in his office, which were classified by the civil service rules, and to make requisitions upon th§ civil service commission of said city for certifications of persons to fill such positions as should become vacant, and directing him to appoint to such offices, positions of employment, and to vacancies therein, only such persons as should be certified to him by such civil service commissioners; and to make no appointment except under and according to the provisions of the Civil Service Act and the rules of said commissioners, etc. Opinion of Magruder, J., in People ex rel. V. Loeffler, 175 111. 585; reported in Fourth Annual Report of the Civil Service Commission, City of Chicago, 1898, p. 573. When is an Appointment Complete P — Where one has been legally appointed to an office [under the United States government] which is exempt from civil service rules, the mere fact that he did not take the required oath of office until after the position was classified as com- petitive, does not, in any way, affect the completeness and finality of the appointment. When the appointing officer has made the nomina- tion and issued the commission and has performed his full duty as an appointing officer, the appointment to the office is complete. Congress may provide that certain acts shall be done by the appointee before he shall enter into possession of the office under his appointment. These acts, then, become conditions precedent to the complete in- vestiture of the office; but they are to be performed by the appointee, not by the executive, and do not afCect the validity of the appoint- ment. The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of 30 The Civil Seetice Law. accepting or rejecting it. Opinion of O. W. Chapman, Solicitor-Gen- eral, United States (approved by W. H. H. Miller, Attorney-General of the United States), dated October 14, 1889; reported in Sixth Report of the United States Civil Service Commission, 1888-1889, p. 84. Prior to November 1, 1894, the postmaster at Baltimore notified cer- tain persons that he had appointed them respectively to the position* of superintendents of divisions and clerks in the post-office, and noti- fied the incumbents of their removal. On November 2d the places were, by order of the President, made subject to competitive examina- tion under the Civil Service Act. Up to November 2d the appoint- ments and removals in question were regulated by section 419 of the postal laws and regulations. The postmaster was empowered to em- ploy the clerks in question, and no formal appointment or approval was requisite. He was also empowered to make removals without restriction. The notice to new employees was sufficient, as was notice to incumbents of their removal, and the appointments and removals were effected before the order of the President operated upon their positions. The removal and appointment were, therefore, held to be legal. United States Attorney-General's opinion of March 18, 1895, Vol. 21, p. 140; reported in Fourteenth Report of the United States Civil Service Commission, 1896-1807, p. 249. Beappointment of Incumbent at Expiration of a Fixed Term Allowable but not Compulsory. — It would seem from the decision in People ex rel. Du Bois v. Mellor, that where by municipal charter or other statutory provision " the term of office of each officer aj>- pointed by the mayor shall expire with the term of the mayor appointing him, and the term of office of all other officers appointed under this act shall expire at a definite time fixed in the charter," heads of departments could compel one whose term had just expired to enter into a new competitive examination before he had any right to a reappointment. But other cases seem to hold that the heads of departments could. If they themselves desired, permit a person in the competitive class to continue beyond his fixed term. Report N. Y. State Civil Service Commission, 1886, p. 237. Where a permanent appointment is made, pursuant to the Civil Service Law then in force, to an office having a definite and fixed term, and where the effect of a reappointment would be to continue In office uninterruptedly an incumbent who had fulfilled upon his original appointment every condition and requirement constituting the test of fitness and merit under constitutional provisions and the law existing on the subject at the time of that appointment, such a re- appointment may be made without holding a new competitive exami- nation. Opinion of Patterson, J., In People ex rel. Wilson v. Knox, 45 App. Div. 537. It is to .be noted that the full extent of this decision is to recognize the right of the appointing officer to retain for a new term any incum- bent who was legally appointed for a definite term. It does not go The Civil Sekvice Law. 31 BO far as to hold that the Incumbent has any right to demand that ho be retained. Transfers under Greater New York Charter.— An employee of the old city of Brooklyn, transferred after consolidation, in violation of section 1536 of chapter 378 of the Laws of 1897, through a clerical mistalie in the plan of transfer, to the wrong department of Greater New York, and thereafter discharged therefrom, is entitled, after the correction of the mistake on mandamus by the officials who made it, to maintain an action against the city to recover his salary end he will be reinstated in his proper position. The officials who made the mistake in the plan of transfer, although no longer in office, have power to correct it and can be compelled to do so. People ex rel. Alsberge v. Cram, 28 Misc. 321. Members ot the police force who legally became such by virtue of sections 276, 280 of the charter of 1897, may procure the issuance of mandamus to compel the police commissioners of the city of Kew York to assdgn them to duty and to place their names on the pay- rolls. People ex rel. Wohlfarth v. York, 33 App. Div. 573; 53 N. Y. Supp. 947. Equitable Injunctions against Filling Positions Illegally.— A court of equity will not grant injunction restraining the head of a department from appointing any person to the position from which the plaintiff has theretofore been removed, nor will it by a peremp- tory writ of mandamus direct the head of the department to restore and reinstate the plaintiff. Opinion of Truax, J., in McNiece v, Sohmer, 29 Misc. 238. It is to be noted, first, that there is nothing In this case to show that the removed official was a veteran; secondly, the court was considering the powers of an equity court alone. A court of equity has no jurisdiction over the appointment and removal of public officers; the jurisdiction to determine the title to a public office belonging exclusively to the courts of law, and being exercised either by certiorari, error or appeal, or by mandamus, prohibition, quo warranto, or Information in the nature of a writ of quo warranto, according to the circumstances of the case, and under the procedure established by common law or by statute. Opinion of Truax, J., in McNiece v. Sohmer, 29 Misc. 238. Compare cases cited under sections 21 and 23. § 8. XTnelassified Service; Classified Service. — The civil ser- vice of the state and of each of its civil divisions and cities shall be divided into the unclassified service and the classified service.^ The unclassified service shall comprise all elective offices ; all offices filled by election or appointment by the legis- Analysis of Section.— i Compare with the first sentence of the fore^ going, section 6 of the old law, which was analogous, though different. 33 The Citil Sekvice Law. lature on joint ballot; aU persons appointed by name in any statute; all legislative officers and employees; all offices filled by appointment by the governor, either upon or without con- firmation by the senate, except officers and employees in the executive offices ; all election officers ; the head or heads of any department of the government, and persons employed in or who seek to enter the public service as superintendents, prin- cipals or teachers in a public school or academy or in a state normal school or college.^ The classified service shall comprise all positions not included in the unclassified service. All ap- pointments or employments in the classified service shall be for a probationary term not exceeding the time fixed in the rules.^ [New in form. See 1 Eeydecker's General Laws, 154.] For distinctioD between the terms " civil service " and " classi- fied service " see section 2, notes. The most important difference between the present and former stat- utes as to what offices shall not be subject to classification is the ab- sence from the present law of a provision such as that which ap- peared in section 8 of the old law, which provided, among other things, that " any subordinate officer who by virtue of his office has personal custody of public moneys or public securities, for the safe-keeping of which the head of an office is under official bonds, shall not be sub- ject to the [civil service] regulations." The absence of this and of all similar provisions and the presence in the existing law of a clause In section 13 authorizing superior officers, in cases where this financial liability exists, to exact from their subordinates a bond, is clear evidence of the Intent of the Legislature not to exclude disbursing 2 Compare the second sentence of the foregoing section with the sec- ond sentence of section 7, also sections 6 and 8 of the old law. While the new law specifies many classes of public employees as unclassd- fled,— among them teachers of schools, election officers, heads of de- partments, etc., — which were not specifically mentioned • in the old law as unclassified, yet, in general, it may be said that the old law contemplated the classification only of " subordinate places, clerks and officers." 8 Compare the third sentence of the above with paragraph 3 of sub- division 2 of section 2 of the old law; also with section 21 (end thereof) of present law; also with rules VIII and XII. The proba- tionary term is designed as a supplementary examination of a practi- cal kind into the fitness of candidates. It furnishes to the appoint- ing officer an opportunity to exercise his discretion. His decision at the end thereof is an exercise of his appointing power. The Civil Sebvice Law. 33 officers from classification, and not to make them necessarily exempt from examination. Offlcars and Employees of Ctounty and City Legislative Bodies Are in the Unclassified Service. — The words " all legislative officers and employees," In section 8 of the Civil Service Law, are used not only In connection with the State but with each of its civil divisions and each of its cities, and manifestly contemplate that there shall be within the unclassified service of the State all those who are officers or employees in bodies whose functions are limited to legislation, as, either State, county or municipal legislative bodies; hence a clerk in the office of the board of aldermen, who is appointed by the city clerk, Is in the unclassified civil service. Such a clerk is, however, a " regu- lar clerk " within the meaning of section 1543 of the Greater New York charter, and the protection of that charter extends to him. Opinion of Patterson, J., In People ex rel. Martin v. Scully, 56 App. Div. 302. Heads of Bepartments, Who Are P— The commissioner of jurors in New York is not " the head of a department," within the meaning of section 1548 of the New York charter. Opinion of Beekman, J., In People ex rel. Taylor v. Welde, 28 Misc. 582. A subordinate officer, as distinguished from an independent officer, is one who is wholly subject to the control of his superior, and who is not vested with the performance of any independent duties by statu- tory enactment; but it seems one will be held to be an Independent officer if he not only performs duties by the direction of his superior, but also performs duties in the absence of the superior under a com- mand laid upon Mm ty the statute; that is, if certain of his duties are quite independent of the superior and are not subject to his direction or control but are imposed by statute. Opinion of Hatch, J., in Peo- ple ex rel. Tate v. Dalton, 34 App. Div. 6. While strictly and technically speaking the head of the police de- partment in New York city [under the organization in existence prior to 1901], was the police board, consisting of the four police commis- eloners, yet the chief might properly be designated as the executive head, and the chief was one of the " heads of the departments " of the city government within the meaning of section 8 of the old Civil Ser- vice Law; and since his duties required qualifications so difficult to test by means of a competitive examination, the exemption of this office from the competitive list in the classified service was not in contravention of the Civil Service Laws or the Constitution of the State. Opinion of T. E. Hancock, Attorney-General of New York, dated September 23, 1897; repofted In New York State Civil Service Commission's Report, 1897, Vol. 15, p. 421. The Illinois Civil Service Act contains a provision excepting from the classified service " heads of any principal department of the city." In discussing who were embraced m this provision, the Supreme 3 34 The Civil Seevice Law. Court Baid: " Counsel say, that it must be determined who are head» by applying certain tests. It is said, that, where an employee is au- thorized to exercise control in the absence of the chief officer of the department, such employee ought to be considered a head. There is nothing in the act which justifies the application of any such rule, In order to determine who are the heads. It is also said that, where an employee has charge of the hiring and employing of a large num- ber of men and the expenditure of large sums of money, and is to be appointed only with the mayor's concurrence, and whose position Is next to that of the chief of the whole department, such an em- ployee must be considered a head of the division or department under his supervision. There is nothing in the act which justifies the ap- plication of any such test as is thus indicated. It Is also said, that where an employee has confidential and business relations with the chief officer in any branch of the city service, he is to be decreed a head. This test also is without sanction in any of the terms of the act. All these tests ignore the fact, that the " heads " referred to must be the heads of " any principal department," not the head of a division, or a department under the supervision of a subordinate. The construction thus contended for would prevent the fulfillment of the object contemplated by the act itself. If it be once held, that there can be other " heads of any principal department " than those existing in the ordinance at the time the act was passed, then new " beads " may from time to time be created by the common coun- cil, or the appointing officers; and every foreman who has a squad of men at work under him will be considered the head of a depart- ment. The object of the law is to provide for appointment to office upon the basis of merit and fitness, as ascertained by competitive examinations which are open and free to all. But if the doctrine is to prevail that new heads of any principal department may be created whenever the exigencies of politics or the demands of partisan service require it, appointments upon the basis of merit and fitness will soon cease to be made. In addition to this, the act contemplates that promotions shall be made from one grade of the civil service to an- other upon the basis of ascertained merit and seniority in service and examination. If, however, every officer who has a number of subordinates under him is to be regarded as the head of a principal department, there can be no opportunity for promotion. If all are heads and all thus occupy the highest grades, there will be no lower grades from which subordinates can rise by promotion. Thus the Intention of the Legislature in passing the act to make both original appointments and subsequent promotions depend upon merit, and upon merit as ascertained by examinations, will be defeated. It is well settled that courts will construe an act of the Legislature so as to give effect to the plain intention of the body, as embodied in the act (Soby v. The People, 134 111. 66)." Opinion of Magruder, J., In People V. Kipley, 171 111. 44. The Citil Service Law. 35 Power of Legislative Bodies to Define " Heads of Deipartmeixts."— An ordinance of the city of Chicago was passed, after the Civil Ser- "vice Law of that State was enacted, requiring that certain subordinate officers or employees in certain of the principal departments of the city government should be " designated as heads of principal depart- ments," as said term was used in the Civil Service Act, " and should be nominated by the mayor and should be confirmed by the city coun- cil " (officials so designated or appointed being by statute free from civil service rules). The Illinois Supreme Court said: " The ordi- nance assumes to define the meaning of the words ' heads of any principal department of the city,' as these words are used in the Civil Service Act. The power to interpret and construe a statute, or to define the meaning of the terms therein, rests with the courts, and not with the Legislature, and certainly not with a subordinate legis- lative body, like the common council of a city (23 Am. & Eng. Bncy. Law, 449). The ordinance does not create any new office or any new department, but simply provides that certain subordinate officials in departments already created shall be designated as heads of prin- cipal departments, and shall be appointed In a different manner from that in which existing ordinances require them to be appointed. Such an ordinance is invalid as being beyond the power of the common council to pass it, in view of the provisions of the Civil Service Act and of the City and Village Act. As has already been stated, sections 3 and 11 of the Civil Service Act provide, in effect, that all of the subordinate officers and employees of any principal department of the city shall be embraced within the classified service. The ordinance of June 28th provides, in effect, that certain designated subordinates in the principal departments of the city government shall not be in- cluded in the classified service. The ordinance is, therefore, directly in the teeth of the statute." Opinion of Magruder, J., In People v. Kipley, 171 111. 44. " Department " — The Municipal Assembly is the Legislative De- partment.— The municipal assembly of Greater New York Is a " de- partment " in the sense In which that word is used in section 8 of the Civil Service Law. Opinion of Patterson, J., in People ex reJ. Martin v. Scully, 56 App. Dlv. 302. Election Officers. — An election officer who seeks reappointment need not submit to a civil service examination. People v. French, 11 St. Rep. 520. Under the act of 1884 (chap. 357) the chief of the bureau of elections In New York city in office on May 24, 1884, with- out passing a civil service examination, was eligible for reappoint- ment People V. French, 51 Hun, 345; S. C, 20 St. Rep. 928; 4 N. Y. Supp. 330. Teachers of Schools. — An assistant teacher in a common school of the city of New York, engaged by the ward trustees, is not a public cfficer of the city, but a mere employee of the ward trustees, and if :wroDgfully prevented from performing his duties, he may, after ten- 36 The Civil Seetice Law. dering his services from time to time, maintain an action against the city of New York for his salary without first procuring his reinstate- ment. Steinson v. The Board of Education of the City of New Yorl£, 49 App. Div. 143. Probationary Period Must be a Definite Term.. — A civil service rule in the city of New Yorls which provided for a probationary period, during which period the person so employed might at any time be peremptorily discharged from service without notice of charges or an opportunity to be heard, was void as in excess of the power granted by section 124 of the charter, and also because in violation of section 8 of the Civil Service Lav? of 1899. " A probationary term " or " a period of probation " implies definite or stated length of duration, especially so when such term or period is to be provided in advance. It is not " any time " within a fixed length of duration, unmeasured by the rules, and measurable by the pleasure or will of the appoint- ing power. " Probation " or " probationary " implies the purpose of the term or period, but not its length; the rules could fix its length, for so the statute provides, but could not make its length provisional In point of time, for that would be to unfix it or annex an unauthor- ized item. A probationary appointee in the city of New York Is thereby secured an experimental trial for the period prescribed by the law or the rules made in pursuance of the law, and he is not to be condemned pending the trial before the time given him to show his fitness has expired, except after an opportunity to explain under section 1543 of the charter. Opinion of Landon, J., in People ex rel. Kastor v. Kearney, 164 N. Y. 64. Kotice to Probationary Appointee that His Services will not be Required after Expiration of Probationary Period may be Given Shortly Prior to Expiration of that Period.— Where three days be- fore the expiration of his probationary period a clerk in the office of the comptroller of New York city received a letter which contained, among other things, the following: " By direction of the comptroller, you are hereby notified that your services will not be required after this," it was said per ciiriam, first department, " We are not aware of any requirement of law which compelled the comptroller to wait until the full expiration of the three months before he notified the relator that his services would be dispensed with. The i-elator was entitled to a probationary term of three months and could not be discharged before the full expiration of that time; that would give him a claim to his salary for that full period. But if, before the expira- tion of that time, the comptroller deemed it inexpedient or inad- visable to retain the relator permanently in the public service, notice that he would not be so retained might be given in advance; and such was the effect of the notification given in this case; " and it was }iel4 that a writ of peremptory mandamus ordering his reinstatement, should be set aside. Per Curiam in People ex rel. White v. Coler, 56 App. Div. 171. The Civil Seevice Law. 37 Purpose of Probationary Period.— It is manifest that the purpose of the statute and rule relating to probationary appointments is to enable the appointing officer to ascertain and correct any error or mistake of himself or of the Civil Service Commission arising from the inefficiency of a candidate certified as eligible, where he might prove incompetent to discharge the duties of the place to which he was appointed. Opinion of Martin, J., in People ex reL Sweet v. Lyman, 157 N. Y. 368. In the above case, when argued in the lower court (30 App. Div. 135), Judge Putnam, although holding that the failure of an appointing officer to give one an absolute appointment after a probationary term, was in no sense a removal, advanced this doctrine: "It may be said that if an appointing officer of the State can in such a case as this, after a probationary period, arbitrarily, without notice to the appointee, and without giving him an opportunity to pro- duce proofs as to his capacity, or to be heard in the matter, decline to give him an absolute appointment, such officer has the power to de- feat the purpose of the Civil Service Act. We think, however, that In this case, if the relator was competent and had not been guilty of misconduct during the probationary period, and was entitled to an absolute appointment, he was not without a remedy. At the expira- tion of his original appointment for three months he could, alleging the facts and that he was qualified to perform the duties of special agent and had been guilty of no misconduct, have applied for an alternative writ of mandamus. Had the defendant denied his com- petency, that question could have been tried in such proceeding. Had it been determined in favor of the relator, he would have been enti- tled to a peremptory writ compelling the State Commissioner of Ex- cise (the defendant) to give him an absolute appointment, and, un- der the provisions of the act of 1896, in such proceeding, the burden would have been upon the defendant to show the relator's income potency," he being a veteran. This Is, however, not decision but dictum, as was afterwards de- clared by the court itself, in disposing of a motion for reargument. The better statement of the law to us appears to be the one which was made by Judge Landon, who concurred In the result, but who in a separate opinion said: " I think it was for the appointing power to pass upon his (the relator's) conduct and capacity during the proba- tionary period, for the reason that if the defendant (the appointing power) had found them satisfactory, it was his duty to appoint him absolutely, and this power for the purpose of absolute appointment implies the power to find either way. Such finding was In its nature a judicial act, and cannot be reviewed upon mandamus." Compare also Keim v. United States, 33 U. S. Ct. Claims Rep. 174. Probationary Appointment not Applicable to those in Office When Bule is Adopted. — A person holding a position in the Federal service on the date it is classified is not subject to the provisions of the 38 The Civil Sektice Law. United States Civil Service Act and rules that there shall be a period of probation before absolute appointment or emplc^ment. Section 7 of Federal civil service rule II gives to " a person holding a positioa on the date said position is classified under the Civil Service Act" all the rights and benefits of persons of the same class or grade ap- pointed under that act. The language is, " the rights and benefits; " that is, " rights and benefits " after appointment, not burdens and conditions before appointment and limitations of it. Those in the service were retained in it, not probationally, but as approved; not conditionally, but absolutely. The rule accepted them, and if it had not intended it fully, there would have been a careful discriminatioa as to service and not an indistinguishable comprehension and putting on trial of those who have been in the service for years with those of, may be, a few months. United States Attorney-General's opinion of July 10, 1897; reported in Fourteenth Report of the United States Civil Service Commission, 1896-1897, p. 250. § 9. Rules for the Classified State Service. — Within one month after the passage of this act, the commission shall make rules^ for the classification" of the offices, places and employments in the classified service of the state,^ and thereafter from time to time rules for the classification of the offices, places and employments in such other civil divisions thereof, except cities, as after due inquiry by the commission shall be found practi- cable, and for appointments and promotions therein and exam- inations therefor, not inconsistent with the constitution and the provisions of this act, and shall amend the same from time to time.* 'No examination or registration shall be required of persons to be employed as laborers in the state service.' Such rules and any modifications thereof, shall take effect Analogous Provisions and Cross-references. — lOompare section 6 (1) of present act as to legal effect of rules. 2 Compare section 12 (4) of the present act as to effect of failure to classify as exempt. 3 Analogous provision in old law, section 2. 4 This provision is new. In pursuance of it, the State commission, In June, 1900, extended the civil service rules to the counties of New York, Kings, Queens, Richmond and Erie. There are no county civil service commissions. The machinery for enforcing the law in counties is the State Commission. County examinations are prepared and rated by it. 5 Same provision in the second sentence of section 7 of the old law. Note, city laborers are to be registered; see section 10 of the present law. The Civil Seevice Law. 39 when approved by the governor. Due notice of the contents of such rules, and of any modifications thereof, shall be given by mail to appointing ofiicers and heads of departments affected thereby, and such rules shall be printed for public distribu- tion.^ Subject to the provisions of this act and of the rules established thereunder, the commission shall make regulations for and have control of examinations for the service of the state and the civil divisions thereof, except cities, and shall supervise and preserve the records of the same,'' but such ex- aminations shall be held at least once a year in each of the fol- lowing places: Albany, Amsterdam, Auburn, Binghamton, Buffalo, Dunkirk, Elmira, Geneva, Hornellsville, Ithaca, Jamestown, Johnstown, Kingston, Lockport, Malone, Middle- town, Wewburgh, New York, Ogdensburg, Olean, Oneonta, Oswego, Plattsburg, Poughkeepsie, Rochester, Saratoga, Syra- -cuse, TJtica and Watertown; and shall cover in each place all offices and positions for which competitive examinations are required, except such examinations as require special tools, TQachinery, appliances, or laboratory facilities.* [Section is new in form. See 1 Eeydecker's General Laws, 154.] Rights of ApiKJintees where there is no Classification or where there is no Existing Civil Service Commission. — Under the pro- visions of sections 12 (4) and 13, it 'would seem that where there has heen no classification, even if the cause of this is the non-existence of a civil service commission, all positions are In the competitive class; and at any rate those properly In that class could not be legally filled. Compare the opinions in the case of Chittenden v. Wurster, 152 N. Y. 345, especially the opinion of O'Brien, J. Compare, however, cases under section 7 upon the question whether a valid appointment can be made in the absence of an eligible list. It will be noticed there is a conflict of authority. As to the rights of county ofiicers and employees where civil ser- vice rules have not been extended to their counties, see below. Approval of Classification by the Governor. — Compare section 6 (1). Regulations.— The regulations required by section 9 appear to re- late merely to matters of procedure in examinations, and not to be 6 This provision is substantially new. Compare, however, a clause in section 8 of old law, fourth sentence. 7 Substantially the same as paragraph third of section 2 of the old law. 8 This provision is new. 40 The Civil Seetice Law. " rules " requiring the approval of the Governor nor to have the force of law. A Classification is a Final and Conclusive Judgment TJntil Set Aside.— Until the contrary appears, it must be assumed that the com- mission, in making & classification of the civil service, acted con- scientiously and upon its best judgment. Such a classification is not void; it may be voidable, for the action is subject to review; but, until it is judicially determined that this classification is erroneous, it is a protection to the heads of departments and employees acting there- under. If appointments are made in accordance with the statute and with the classification as it then exists, since the.v can then be made in no other way, and the incumbents are until that time entitled to compensation, the appointments must be deemed valid until the proper classification is mada Opinion of Haight, J., in Chittenden V. Wurster, 152 N. T. 345. In discussing, in Chittenden v. Wurster, 152 N. Y. 345, the various remedies for defective or improper classification by civil service com- missions. Judge Haight, who wrote the opinion of the majority, said: " If the officers whose duty it is to classify the civil service refuse to do their duty, or if they do it improperly, they may be compelled by direct proceedings, as by mandamus, or perhaps in some cases by certiorari, instituted by any resident citizen, to do it in accordance with the requirements of the Constitution and of the statute. The courts have the power to compel the discharge of such duties, but a taxpayer's action to restrain the payment of salaries is not the appropriate remedy." It should be borne In mind that in this case it was held that the taxpayers' action to- restrain was not the proper remedy where the appointment had been made in accordance with a classification made by the proper authorities, but which, it was com- plained, was inconsistent with the statute and the Constitution. It was not held that a taxpayer's action to restrain payment of salaries was improper where appointments had been made in violation of the classification. It should also be borne in mind that since Judge Haight's decision, section 27 of the " White " Law (Laws 1899, chap. 370), has been enacted. See that section and also the recent case of Rowley v. Rochester, 34 Misc. 291. A classification once made is good until it is set aside or modified by some judicial proceeding, and so long as it remains unchanged by the action of some judicial authority, it binds every one and protects every one acting under it or holding a place under it. Opinion of O'Brien, J., in People ex rel. Terry v. Keller, 158 N. Y. 187. Com- pare, however, section 27 of the Civil Service Act. Power of the Legislature as to Classification. — What are the pow- ers of the Legislature as to the classification of civil service positions? In the case of People ex rel. Terry v. Keller, 158 N. Y. 187, Judge O'Brien in discussing the question whether or not Laws of 1898, chap- ter 186, in effect March 31, 1898, could change a classification made The Civil Seetice Law. 41 by the New York municipal commission on March 5, 1898, said: " In the first place, the classification of March 5th having been made in pursuance of statutory authority, and being reviewable by certiorari or enforceable by mandamus, vyas a duty Imposed upon the mayor and the civil service commissioners judicial in character. Of course, if it was reviewable by certiorari it must have been a judicial act, since an executive, legislative or ministerial act is not so reviewable. The power of the Legislature is restricted to the enactment of laws, or, in other words, to powers that are legislative in character. It cannot set aside, annul or correct a judicial act; and it had no more power to set aside this classification than it had to set aside a judgment of the courts. The act of making the classification could be affected only by some judicial proceeding; it could not be reviewed or corrected, if erroneous, by the Legislature. The Legislature has no povrer to appoint or re- move an officer or employee of a city. A statute passed to turn out one class of officers and employees in a city and to put some other class In is not a legitimate or constitutional exercise of the legislative power. It is a usurpation of the executive or judicial power. A stat- ute to annul or change a judicial determination once made, whether by a court or some other body in the performance of a duty author- ized or required by law and judicial in its nature, is open to the same objection. The courts should always construe a statute as an exercise of legislative power within the restrictions of the Constitu- tion, and not as an exercise of some other power which the Legisla- ture does not possess. While the Legislature had no power to review or set aside a classification already made, it had the power to provide in the future for a different method of classification. That Is to say. It had the power to provide that In the future all classifications made should have the approval, not only of the mayor of the city, but of the Civil Service Commissioners of the State." This decision should be read in connection with People ex rel. Terry v. Keller, 35 App. Div. 493; Chittenden v. Wurster, 152 N. Y. 362. Review of Classifi.catioii by the Courts. — Whether, in a given case, a competitive examination is practicable to ascertain the merit and fitness of the applicant for the place is mainly a question of legal construction, which is to be determined by reference to the require- ments of the office and by the use of judgment aided by the facts of the case. Whether a classification or a determination made as to the method of appointment, is In conflict with the constitutional pro- vision, or is in evasion of its spirit and purpose, must be a question for the ultimate decision of the courts. The exercise by a civil ser- vice commission in good faith of Its judgment, resting upon facts and circumstances, which leave the question of the practicability of an appointment as the result of the examination test prescribed, a fairly debatable one, should not be disturbed by the courts. When, in the enactment of the laws called for by the constitutional provision, or deemed requisite in some exigency, the Legislature shall undertake 43 The Civil Sekvice Law. to classify, or to declare with respect to the practicability of com- petitive examiDations in a class of cases, the courtsf will not set such aside, provided such action is in the exercise of a reasonable discre- tion and is not open to the charge or intending a violation of the fundamental law. The power of the courts is rather supervisory in its nature and it is intended that it shall be invoked, whenever the charge is made that the constitutional guaranties have been infringed upon by legislation. The duty of the court is in no wise to classify, but to pass upon a question of classification, in view of the require- ments of the Constitution. Dissenting opinion of Gray, J., in Chit- tenden T. Wurster, 152 N. Y. 3-15; upon this point, apparently in har- mony with established decisions. Limit of Power of Commission in Classifying. — The Civil Service Commission cannot change the actual status of a position by declaring one which is actually confidential not to be so, nor is it vested with power to repeal a valid statute or to practically annul it by declaring a position to be competitive when the law has provided otherwise and the position is plainly of a confidential character. Opinion of Martin, J., in People ex rel. Sweet v. Lyman, 157 N. Y. 368; followed in Rowley v. City of Rochester, 34 Misc. 291. Extension to Counties. — In so far as the machinery for enforcing the Civil Service Laws in counties is concerned, it has been well said by Judge O'Brien in Chittenden v. Wurster, 152 N. Y. 345, that it is not necessary in order to put the mandate of the Constitution into immediate operation to wait until a village or a county civil service board is organized by the Legislature. All the Constitution requires, is that there shall be an honest, open, competitive examination, and the State can furnish that even to candidates in the particular county better than any local authority. A surrogate is distinctively a county oflB-cer. (§ 15, art. VI, Const.; also art. XII of chap. 18, Gen. Laws.) Under civil service rule 25, in force in 1897, providing that " These rules shall not apply to the oflBcers of counties, towns or villages," the office of surrogate was not within the jurisdiction of the State Civil Service Commission. Opinion of T. E. Hancocli, Attorney-General of New York, dated No- vember 8, 1897; New York Civil Service Commission's Report, 1897, Vol. 15, p. 428. Except in those counties to which, by vote of the State Commission, the rules have been extended, this is undoubtedly true now. In all other counties the failure of the commission to extend the rules may be fairly considered as its decision that in those localities it is impracticable to apply the system. Power of the Civil Service Commission to Im.pose an Examination Upon Those Holding Positions in the Civil Service at the Time When the Rules Are Extended to Those Positions. — The successive Civil Service Commissions of New York State, as well as those of the "United States, have always proceeded upon the theory that whenever the civil service rules were extended so as to include any position, The Civil Seevice Law. 43 those who were incumbents of the position at that time, having been legally appointed, continued to hold office and were not subject to any examination for the purpose of ascertaining whether they were, in fact, qualified for their positions, and were not subject to any tests; that persons holding positions which, after their appointment, were put in the competitive class, remained therein and were possessed of all rights given to persons belonging to the competitive class. This course of conduct seems to us not only to have been in harmony with the statutes and with the Constitution, but as apparenly required by them. 5Ehe question, however, whether or not a civil service com- mission has power to require an examination of those who, at the time the rules are extended to positions, are holding such positions, haa never been clearly raised in the courts of New York, but a some- what similar question has come before the courts of Illinois, al- though under circumstances different from those which are liliely to arise in New Yorli. Under the Illinois act incumbents of places in the competitive class who obtained those positions as the result of an examination, are protected from removal except for cause and after a hearing. This right is not extended to those who are in the competitive class, but who were appointed be- fore civil service rules were promulgated; that is to the class which is commonly denominated as the " hold-over " class. It is apparent that under the Illinois statute it is to the benefit of such a person to be permitted to take an examination and to retain his place by virtue thereof rather than by virtue of an appointment, which, though legal, was not made as the result of an examination. In this respect the situation in New York differs from that in Illinois, but the following quotations from the opinion of Judge Tuley, in the cases last above mentioned, are nevertheless worthy of great consideration in study- ing the statute of New York upon the subject. " Can there be any other examinations than those expressly pro- vided for in sections 6 and 9? ITJie examinations provided for iy these two sections are original entrance examirfations and promotion examina- tions. — Author.] This is an important question in connection with the right of a ' hold-over ' to become a civil service appointee and to iave the benefit of the law in protecting him in the tenure of his office. The requirement of the law that ' all offices and places should be classified, and when thus classified shall constitute' the classified •civil service of the city,' shows an intent to bring every official and employee so classified under the operation of the law. Considering the abuses sought to be remedied and the object and purposes of the law in establishing the merit system, a liberal construction of the act should be made in order to effect the purpose intended. I am of the opinion that the intention of the Legislature was to bring every office and place of employment in the city, except those mentioned in sec- tion 11, under the complete operation of the law, at the earliest pos- sible moment, and that the officers and employees in office at the 44 The Civil Seevice Law. time that the act went into effect, as well as the public, should re- ceive the benefit of all Its provisions. Section 4 of the act provides that said commission ' shall malse rules to carry out the purpose of this act.' This would authorize a rule, in substance, permitting any 'hold-over' to make application to become a civil service appointee under the act, and providing for an examination to be held therefor and for the certification of the result thereof to the appointing power; if such ' hold-over ' was found qualified, he would be entitled to receive an appointment as a civil service appointee under the act; if he were found disqualified, the appointing officer could remove him from office, but possibly would be under no legal obligation to do so." Opinion of Tuley, J., in Mather v. Kerfoot and People v. Ptacek. See Sixth Report of Chicago Civil Service Commission (1900), p. 84. The last clause of the last sentence of the quotation is to be care- fully noted. We think it is a recognition of the principle upon which the New York and Federal Commissions have always acted. That principle is that officers and incumbents of positions at the time when civil service rules are extended to those positions, being legally in office, continue in them, and cannot be compelled to undergo an. ex- amination to test their qualifications as a condition of such continu- ance. Who is a IiaborerP — (Compare section 17.) In discussing this ques'- tlon. Judge Lewis said, in the case of Rogers v. Diebold, 22 Abb. N. O. 144; 2 Supp. 326; 3 Supp. 671, in which it was contended that a street inspector, appointed on the nomination of the street commissioners, and named in the city charter as an officer, was a laborer, " Are the duties of the office of health and street inspector those of a laborer or workman in the sense those Tvords are used in the CiTil Service Law (the original law of 1883 as amended down to 1888)? In some sense every one following an occupation or calling is a laborer or work- man, but these words are used in this statute to distinguish between persons who work with their hands, performing manual labor simply, without having supervision over or responsibility for others' acts, — persons who have their tasks assigned to them by another; and those engaged in occupations not requiring manual labor but simply the use of their minds and judgments,— the management of others or the direction of affairs. The official name of Diebold's office, ' Inspector of Health and Streets,' indicates that he is not a laborer or workman in the popular sense in which those words are used. His duty is to inspect the streets and other parts of the city for sanitary purposes and to see that the streets, alleys, etc., are in a safe and proper con- dition for the use of the public. These duties are of a higher order than those of the common laborer, calling for a greater degree of dis- cretion and intelligence. It is suggested by defendant's counsel that there is nothing in the charter specifically defining their duties; noth- ing to prevent the street commissioner from assigning them to work ■with the shovel or the hoe, cleaning the streets. I think the reasons The Civil Sekvice Law. 45 already suggested preclude their being assigned to such menial ser- vice." Per Diem Compensation does not Conclusively Prove that the Recipient is a Laborer.— The fact that a public officer's or servant's compensation is so much a day does not necessarily make him a day laborer. A position or office may be permanent, and yet compensa- tion be paid by the day, week or month. Opinion of CuUen, J., in Nuttall V. Simis, 31 App. Div. 503. The Question is Determinable from the Duties of a Position Rather than from its Title.— Where the opposing papers upon an application for a peremptory mandamus for the reinstatement of relator as a " stream cleaner " (which opposing papers must be taken as true), as well as the undisputed facts of the case, show that the position of " stream cleaner " has not been inserted In any competitive class in the civil service of the city by name; and the duties attached to the relator's position in detail required him to keep clean the water run- ning in the streams, removing therefrom any rubbish or other in- jurious material, and to prevent the creating of any nuisance thereon or pollution thereof, the court declared that it was apparent that the discharge of these duties was quite within the capacity of an ordi- nary laborer, and such was the natural designation of a person per- forming such service. It was in fact manual labor, and the pay at- tached to the position — two dollars per day — was also indicative of the fact, and such position was held to be one which must be deemed to be that of a laborer and day workman, and to be classified in schedule G (the labor schedule) and not subject to competitive exami- nation. From the nature of the duties it could not be deemed as being in " Schedule F, which included stenographers, typewriters and, all classified positions not included in the foregoing schedules, except laborers or day workmen." Opinion of Hatch, J., in People ex rel. Langdon v. Dalton, 49 App. Div. 71. It has been the generally accepted doctrine throughout the State that as to the positions of laborers and day workmen, performing ordinary manual labor, it is not practicable to employ competitive examina- tions in order to determine fitness, and such persons [in cities] have usually been classified in the noncompetitive or exempt schedules. [In the State service they have never been registered.] Denominating manual laborers by a particular name does not change the fact. Call- ing persons " stream cleaners " or giving them other titles does not change the character of the duties which they perform. Opinion of Hatch, J., in People ex rel. Langdon v. Dalton, 49 App. Div. 71. Unskilled Iiabor Positions are in the " Labor Schedule," Although not Specifically Mentioned. — If the duties of a position bring it within the designation of common unskilled manual labor, even if it is not specifically mentioned, it must be deemed to be in the labor class. Opinion of Hatch, J., in People ex rel. Langdon v. Dalton, 49 App. Div. 71. 'compare, however, the following paragraph: 46 The Citil Sehvice Law. Where a bridge-tender on the Erie canal has been employed with- out his passing a civil service examination, he claiming to be a laborer,— ffeZd, in the absence of classification, to be illegal. Walsh V. City of Albany, 32 App. Div. 128; 52 N. Y. Supp. 9S6. See previous paragraph. Who is a ForemanP — The word "foreman," when used in civil service, is to be talien in its usual and ordinary signification. As the word is commonly employed, it means a person who has immediate charge and oversight of a gang of laborers, directing them in their work and seeing that they lieep at work. On the other band, a su- perintendent, as applied to civil offices, is one who has charge and oversight of a department of government, either a principal or a subordinate department. He is an officer to whom is intrusted re- sponsibility, judgment and skill. A foreman of laborers is intrusted only with the duty of seeing that his men keep at work. A superin- tendent has the general charge and oversight of the work of a de- partment, especially in its relation to the public, for whose benefit the department was created; and, under the authority of his chief, if he himself is not the head of the department, represents the adminis- tration of the government. Opinion of Hosea M. Knowlton, Attorney- General of Massachusetts, dated July 17, 1896; reported in pamphlet issued by Massachusetts Civil Service Commission, containing civil service cases, decisions and opinions, p. 94. Practical Mechanic, who isP — The charter of the city of Buffalo provided that the board of public works should appoint inspectors of buildings, who should be under the control of the head of the bureau of building, and that such inspectors should be practical building mechanics of not less than five years' experience in their trade. Held, that one who had devoted himself for several years to the actual drawing of plans for and the construction of buildings of various kinds, was a " practical " building mechanic; it was not necessary for a person to perform manual labor with the tools of any special trade or occupation to become such a mechanic. If such a person was competent to devise, direct and supervise the construction of all kinds of buildings in all their parts, he was at once an artisan, a handicraftsman and a mechanic. If he did and had been for a con- siderable period doing all those things, he was a " practical mechanic," whether he had ever touched a tool of any particular trade or handi- craft or not. Opinion of White, J., in People ex reL Beck v. The Board of Aldermen of the City of Buffalo, 18 Misc. 533. § 10. The Classified City Service The mayor of each city in this state shall appoint and employ suitable persons to pre- scribe, amend and enforce rules for the classification of the offices, places and employments in the classified service of such city, and for appointments and promotions therein and exam- The Civil Seevice Law. 4? inations therefor; and for the registration and selection o£ laborers for employment therein/ not inconsistent with the constitution and the provisions of this act, and shall amend the same from time to time. Such persons shall he municipal civil service commissioners and shall constitute the municipal civil service commission of such city.* All appointments or designations of municipal civil service commissioners shall b& made in such manner that not more than two-thirds of such commissioners in any city shall at any time be adherents of the same political party.' Such rules herein prescribed and es- tablished, and all regulations now existing for appointment and promotion in the civil service of said city, and any subse- quent modification thereof, whether prescribed under the au- thority of a general law or of any special or local law, shall be valid and take or continue in effect only upon the approval of the mayor of the city and of the state civil service commis- sion.* The authority by this section conferred shall not be so exercised as to take from any policeman or fireman any right or benefit conferred by law, or existing under any lawful regu- lation of the department in which he serves.^ All examina- tions herein authorized shall be public, and all rules shall be published, and, with all the proceedings and papers connected with said examinations, shall be at all times subject to the inspection of said state commission and its agents; and said commission shall set forth in its report the character and prac- tical effects of such examinations, together with its views as to the improvement and extension of the same, and also copies of all rules made under the authority hereby conferred.® Sub- ject to the provisions of this act and of said rules, the municl- Analogous Provisions and Cross-references. — i Analogous to this was the first sentence of section 8 of the Civil Service Law of 1883, after being amended by chapter 410 of Laws of 1884. Until that amendment the act did not apply to cities having less than 50,000 in- habitants, nor was it mandatory. See also section 8 of the Civil Ser- vice Law of 1898, chapter 186. 2 New. 3 New. ■4 Analogous provision in section 8 of Civil Service Act after amend- ment in 1884. B Same provision in section 8 of act of 1883. e Same provision in section 8 of act of 1883. 48 The Citil Seetice Law. pal commission of any city shall make regulations for and have control of examinations and registrations for the service of such city, and shall supervise and preserve the records of the same. '' In case, for any reason, the mayor of any city within sixty days after he has the power to appoint, fails to appoint such municipal commissioners, the state commission shall ap- point them to hold ofHce until the expiration of the term of the mayor then in office and their successors are appointed and qualify. It shall be the duty of such persons to prepare and to procure the approval of the rules herein provided for, and, if they fail to do so within sixty days after their appoint- ment, the state commission shall forthwith make said rules. It shall be the duty of such persons to make reports from time to time to the state commission, whenever said commission may request, of the manner in which this law, and the rules and regulations thereunder, have been and are administered, and the results of their administration in such city, and of such other matters as said commission may require, and annually on or before the fifteenth day of January, to make such a re- port to said commission ; and it shall be the duty of said state commission in its annual report to set out either these reports, or a sufficient abstract or summary thereof, to give full and clear information as to their contents. A copy of the roster of the classified civil service of such city shall be transmitted to the state commission with the annual report aforesaid, and shall be filed in the office of said comcmission as a public record. The mayor may at any time remove any municipal civil service commissioner appointed by him. Said state commission may also, by unanimous vote of the three commissioners, with the written approval of the governor, remove any municipal civil service commissioner appointed or employed under the author- ity of this section, for incompetence, inefficiency, neglect of duty or violation of the provisions of this act, or of the rules and regulations in force thereunder, or of any of them, specify- ing in writing the particulars of the incompetency, inefficiency, neglect of duty or violation charged, and filing the same as a public document in the office of the city clerk, or if there be 7 The balance of the section had no analogous provision In the earlier acts relating to the subject. The Civil Sekvice Law. 49 no city clerk, in tlie office of the clerk of the board of aldermen, and a certified transcript thereof in the office of the state civil service commission, first giving him an opportunity to make a personal explanation in self-defense. Whenever a municipal civil service commissioner has ieen removed hy the unanimous vote of the three state commissioners, with the writtefi approval of the governor, or whenever any municipal commissioner shall resign or he removed hy the mayor pending an investigation hy the state commission of the administration of the civil service of the city in which such a person is a municipal commissioner, or whenever any municipal commissioner shall resign or h^ re- moved hy the mayor pending a hearing hy the state commis- sion of charges preferred against such municipal commissioner, the state commission and not the mayor of such city shall have power to appoint persons to fill such vacancies, and such per- sons so appointed hy the state commission shall hold office as m,unicipal civil service commissioners of such city until the expiration of the term of the mayor then in office and until their successors are appointed and qualify. Said state commission may at any time, by unanimous vote of the three commission- ers, amend or rescind any rule, regulation or classification pre- scribed under provisions of this section, provided that said state •commission shall state the reasons for such action in writing, and file the same and a certified transcript thereof as a public document as hereinbefore provided, and give an opportunity to the municipal civil service commissioners concerned to make a personal explanation and to file papers in opposition to such action. The said state commission, however, shall not take such action upon any ground other than that the provisions or purposes of this act are not properly or sufficiently carried out by such rule, regulation or classification, nor without specify- ing in writing and detail in what particular such provisions or purposes are not carried out, nor shall said state commis- sion exempt from competitive examination any position, or place or employment in any city without the consent of the municipal commission of such city. [The matter in italics was added iy chapter 675, Laws of 1900. See 1 Eeydecker's General Laws, 155.] Comments on Statutory Changes of Section 10.— The decisions un- der the law will clearly show that section 10 does not impose upon mu/- 4 50 The Civil Seevice Law. nicipal commissioners personally the work of preparing and conduct- ing and rating examinations. They may hire a secretary and chief examiner and such other subordinates as are needed. The words, "Any subsequent modification thereof, whether pre- Bcribed under the authority of a general law or of any special or local law " are to be carefully noted. They show, unquestionably, that notwithstanding the present Civil Service Law Is a general law, it is Intended to affect all the cities of the State, and that previous local laws which are inconsistent with it, are repealed by it. It is also to be noted that the civil service rules of cities adopted by municipal commissions, in order to be valid, must receive the ap- proval first, of the mayor and then of the State Commission. In case the mayor fails to approve, the State Commission cannot give> valid- ity to the rules by approving them. It can, however, treat the re- fusal of the mayor to approve the rules as a failure* upon the part of the commission to prescribe rules, and then the State Commission may make rules for the said city pursuant to the power conferred upon it by this section. Such a course was taken in 1899 in the case of New York city, when the mayor of that city refused to approve the rules prepared by the local commission after the same had been amended in accordance with suggestions of the State Commission. In exercising the power conferred upon it to investigate the action, of municipal commissioners and to remove them, the State Commis- sion acts as a judicial or quasi-judicial tribunal. Its function in this respect is in no sense administrative or executive. In prescribing amendments to municipal rules, the essential steps of the procedure are the service of a notice fixing a date upon which cause must be shown why the amendment should not be made. The notice should contain the exact language of the proposed amendments, the detailed reasons for making it, a statement of the general ground that the provisions and purposes of the Civil Service Act are not prop- erly or suflaciently carried out by the existing rule, regulation or classification, with a specific statement in detail as to the particulars in which said provisions or purixjses are not carried out. After the hearing, if the commission decides to make the amendment, it should pass a resolution which, in order to be valid, must receive the unani- mous affirmative vote of the commission, and which should set forth all the jurisdictional steps which have been taken. The resolution making the amendment, with a statement of the reasons therefor, should be filed as a public document in the office of the city clerk, but if there be no city clerk, in the office of the clerk of the board of aldermen, and a certified copy thereof should be filed in the office of the State Civil Service Commission. The constitutionality of the matter in italics in section 10 has been questioned. It has been said to be in violation of article X, section 2 of the Constitution which provides: "All city, town and village of- ficers whose election or appointment is not provided for by this Con- The Civil Service Law. 51 stitution, shall be elected by the electors of such cities, towns and vil- lages, or of some division thereof, or appointed by such authorities tTiereof as the Legislature shall designate for that purpose." But no judicial decision has been rendered in the matter, for the reason that the State Commission has never exercised the power conferred upon It. It has also been questioned whether that portion of section, 10, authorizing the State Commission to remove municipal commission- ers for cause after hearing, is constitutional. It has been urged that this also violates the spirit, if not the letter, of article X, section 2; but this contention does not seem tenable. There is apparently noth- ing in the constitutional provision referred to which prohibits the Legislature from creating a special tribunal for the trial of such matters. It is also questionable whether that provision of the law which authorizes the State Commission to appoint municipal commissioners where the mayor fails to make the appointment within the statutory time, is constitutional. It has been urged in Support of this power that the failure of the mayor to make the appointment is a waiver of his rights, but we know -of no rule of law that makes the failure of an oflBcial to perform a duty imposed upon him by law, even although it can be regarded as a waiver of his rights in the matter, sufficient authority for some other officer to perform the duty and to exercise the power involved in it, in violation of a constitutional restriction. As to the power of the Legislature to delegate to the State Com- mission the right to prescribe municipal civil service rules and as to the general right of a Legislature to delegate to any body legislative powers, compare the cases cited under section 6 (1). If the power delegated is in its nature not inconsistent with constitutional pro- visions, then the fact that that delegation is made to a State official body does not seem to violate the Constitution, even although only a special locality is to be affected, for all legislation has its original source in the State, although administration, by virtue of the Con- stitution, as well as of statutes, is frequently limited to local officers. Applicable to all Cities, notwithstanding Pre-existing Charter Provisions as to Local Civil Service. — The question whether or not chapter 186 of the Laws of 1898 was applicable to Greater New York, and in effect repealed the provisions of its charter concerning civil service administration therein, was long the subject of much litigation. Three times the Court of Appeals decided cases in which the question was raised and most exhaustively considered. In each of these cases (People ex rel. Leet v. Keller, 31 App. Div. 248; affd., 157 N. Y. 90; People ex rel. Terry v. Keller, 36 App. Div. 493; affd. [but on different grounds than those assigned in the opinions written for the Appellate Division] in 158. N. Y. 187, and People ex rel. Fleming v. Dalton, 34 App. Div. 627; revd. in 158 N. Y. 175), the Appellate Division rendered decisions accompanied by opinions 52 The Civil Seevice Law. in which various grounds for the decisions were given, the chief, however, being that the charter of Greater New York in itself pro- vided for a complete system of civil service administration incon- sistent with the provisions of the General Civil Service Law there- tofore enacted, and therefore abrogating the general law so far as New York city was concerned; further that the Legislature having by the Greater New York charter enacted this special local civil service legislation for the city of New York, distinct from other cities, the subsequent general law (Laws of 1898, chap. 186), although in terms relating to all cities of the State, being an amendment of the General Civil Service Law of 1883, did not repeal the provisions of the Greater New York charter, the court applying to the case the well-established principle of statutory construction that a special and local statute, providing for a particular case or class of cases, la not repealed by a subsequent statute general in its terms, provisions, and applications, unless, by the language used, the intent to repeal or alter is manifest, even although the terms of the general act are broad enough to include the cases embraced in the special law. But while in the opinions delivered in the Court of Appeals in the Leet and Terry cases this principle was invoked and by various judges was given as the ground of the decision in those cases, in neither of them was that principle, in fact, made by the majority of the court the ground of the decision. The majority in each case con- curred in the result reached by the judge writing the opinion, but did not concur in the argument, or unite with him in applying the principle invoked by him. In the Leet and Terry cases the decision of the question as to the effect of Laws of 1898, chapter 186, upon the civil service provisions of the Greater New York charter, was not absolutely necessary, for, assuming that chapter 186, upon which the relator based his claim for relief, was applicable to the city of New Yorlc, the relief demanded by the relator in each of these cases could not be granted. But in the Fleming case the decision of the question w^as absolutely necessary to the determination of the rights of the relator, he being in the competitive class, and in that case, the court (Judge Bartlett writing the opinion, in which all but tTWO judges concurred) declared: "There is no separate and distinct civil service system provided for the pres- ent city of New York in its charter; the General Civil Service Laws of the State are applicable to that city, save where repealed directly or by implication by that charter; it follows, subject to thia limitation, that the act of 1883 (chap. 354), as amended by various acts, and finally amended by the act of 1898 (chap. 186), is applicable to the city of New York. The act of 1898 modified and repealed the provisions of the Greater New York charter so far as inconsistent with it, and subjected the present city to new civil service provisions by amending the act of 1883." Opinion of Bartlett, J., in People ex. The Civil Sekvice Law. 53 rel. Fleming v. Dalton et al., 158 N. Y. 175. A fortiori the city of New York Is subject to chapter 370, Laws of 1899. Civil Service Commissioners as Public Officers. — Under the former Civil Service Statute permitting mayors of cities to " designate, from time to time, suitable persons to conduct examinations," the Attorney- General gave it as his opinion that neither this designation nor the statutory provision made such persons city officers, and therefore the mayor of a city could properly appoint as civil service examiners for that city, members of the police board and excise commissioners. Opinion of T. E. Hancock, Attorney-General of New York, dated May 10, 1894; New York Civil Service Commission's Report, 1894, Vol. 12, p. 114. But by section 10 of the White Civil Service Law, the per- sons now designated to conduct such examinations are expressly recognized as city officers. Municipal Examiners to be Compensated. — Eeld, that the pro- visions in the original Civil Service Act, as amended in 1884, directing the mayor to appoint suitable persons to conduct civil service examina- tions, and to enforce the rules and regulations which the mayor might prescribe were so clear and positive as to leave the mayor no discre- tion upon the subject, but he must from time to time employ suitable persons to confiuct the examinations and make the inquiries required. The fact that neither the original act nor the one amending it con- tained any express provision for compensating the persons to be so employed by the mayor was not sufficient ground for holding that their services were intended to be rendered gratuitously. By requir- ing the mayor to employ suitable persons to perform these services, it Is to be implied that it was intended that they should be reasonably remunerated for such services. For in no other manner could persons be ordinarily induced to render services of the description of those prescribed by the law. What the mayor had been required to do was to employ suitable persons, and the power to employ others to render services on behalf of the municipality included the obligation to pro- vide for their compensation. Opinion of Daniels, J., in People ex rel. Wright V. Common Council of Buffalo, 16 Abb N. C. 96; afCd. in 38 Hun, 637. Where an appropriation of money Is essential for the purpose of carrying a statute Into effect, although not so declared In the law itself, the obligation to make it Is to be derived by implication from It. The rule upon this subject is that " whenever a power is given by statute, everything necessary to make it effectual or requisite to attain the end is implied," and " where the law requires a thing to be done, it authorizes the performance of whatever may be neces- sary for executing its commands." Opinion of Daniels, J., in People ex rel. Wright v. Common Council of Buffalo, 16 Abb. N. C. 96; afCd. in 38 Hun, 637. HigM of a Taxpayer to Compel Common Council to Make Appro- priation for Civil Service Commission. — Where a dty charter pro- 64 The Civil Sebvice Law. vides that the common council may alter or amend any estimates submitted to it by heads of departments, but where the common council has not been invested with the power of wholly rejecting the estimate; lield, it may, under the authority to alter or amend the estimate, extend, modify, or limit it, as that may appear to be justified by the facts; but it has no authority arbitrarily to reject the estimate. Its legal, as well as its absolute, duty is to consider it in good faith, with sound judgment and discretion, and if any misapprehension has intervened in its amount, to correct it and apportion it to the probable necessities of the service for which it may be designed. If it fails to do this, it may be compelled to do so by mandamus sued out by any citizen. Opinion of Daniels, J., in People ex rel. Wright v. Common Council of Buffalo, 16 Abb. N. C. 96; aflfd. in 38 Hun, 637. Compare, however, the decision of the Court of Appeals in Kip V. City of Buffalo, 123 N. T. 152, three paragraphs below. Any citizen and taxpayer of a city, interested in the orderly main- tenance of its government, has the right to sue out a writ of man- damus to compel a common council to malse a reasonable appropria- tion for the carrying into effect of a Civil Service Law affecting that city. It is only when the application for the writ is made to secure some personal or private redress that the applicant must be shown to be interested in obtaining it, before the writ can be directed to issue. Where the act omitted to be performed affects the public Interests generally, and all citizens are equally concerned in securing Its performance, and it has been enjoined by a law of the State, a different rule prevails. Then it is suflBcient to support the application that the applicant is a citizen, and is entitled to insist upon the execu- tion of the laws of the State. Opinion of Daniels, J., in People ex rel. Wright v. Common Council of Buffalo, 16 Abb. N. C. 96; affd. In 38 Hun, 637. Power and Duty to Employ Secretaries for DSunicipal Commis- slons.— Mayors of cities had authority under the Civil Service Act of 1883 (as amended in 1884), and the regulations prescribed by them and approved by the State Civil Service Commission, to appoint secretaries to the city commissions. Such appointments might be made for no designated term, but to last during the pleasure of the appointing power. Opinion of Peckham, J., in Kip v. The City of Buffalo, 123 N. Y. 152. Bight of CSivil Service Cominissioners and their Subordinates to Bring Action to Becover Seasonable Value of Services in Case no Appropriation has been Hade. — In a case where the common coun- cil of a city has practically refused to place in the tax budget any, or a merely nominal sum for carrying out the provisions of the Civil Service Law, the city is nevertheless liable to an officer legally ap- pointed under the provisions of the Civil Service Act and the regula- tions properly made in pursuance of such provisions, for an amount which shall be a reasonable compensation for such services, but In The Civil Seevicb Law. 55 BO case greater than the sum which may have been fixed by the mayor and assented to and agreed to be accepted by such appointee. In case the sum estimated by the mayor for the salary of a secretary had been confirmed by the common council, such sum would have been conclusive upon both parties; upon the city, because of the power given under the charter to the mayor, if confirmed by the «ommon council, to fix upon an amount for any legal and proper charge in this department, and upon the officer because of his assent to it by taking office. In case no agreement is come to between the mayor and the common council, so that no sum is appropriated for that purpose, or a less sum than that estimated by the mayor, it then becomes a question of fact as to what is a reasonable com- pensation for the services performed, and that question is to be decided like any other issue of fact in a legal tribunal. A failure between the mayor and common council to agree on any sum cannot and will not absolve the city from its obligation to pay a reasonable compensation for services thus legally rendered by the secretary of the city civil service commission. Nor does the right to sue for compensation depend upon a prior appropriation by the common council. So held notwithstanding the defendant's contention that the charter of the city of Buffalo required that the estimates for each department should be itemized, and that any debt contracted in any department in excess of the amount appropriated to that special object, or for an object for wMch no appropriation had heen specially made, was not binding on the city, and that moniey raised for one purpose could not be used for another. The remedy of the plaintiff is not confined to proceedings by mandamus to compel the common council to agree to the amount estimated by the mayor for the pur- pose of the payment of his salary, or else in good faith to decide upon some other and reasonable sum. * * * The remedy by mandamus, even if proper, is by no means adequate. Opinion of Peckham, J., in Kip v. The City of Buffalo, 123 N. T. 152. Proof of Bules. — The civil service regulations of a city, on file in the office of the State Civil Service Commission, may be sufficiently proved, for use In evidence, by the production of a copy certified by the secretary of the State Commission, in substantial compliance with section 933 of the Code of Civil Procedure. In order to render available, on appeal, an objection to the admission in evidence of a copy of municipal civil service regulations certified by the secretary of the State Civil Service Commission, on the ground that the cer- tificate fails to state that the copy has been compared with the original, as prescribed by section 957 of the Code of Civil Procedure, the specific defect must have been pointed out on the trial; a general objection that the paper was not properly certified is not sufficient. Opinion of Bartlett, J., In People ex rel. Sears v. Tobey, 153 N. Y. 381. Approval of State Commission — - Constitutionality of Clause Be- quiring it. — The Civil Service Act of 1883, as amended by the act of 56 The Civil Service Law. 1884 requiring regulations prescribed by the mayor to be approv'e The object of that law is to increase the efliciency of the civil service, but we cannot construe it as intended by the Legislature to bring an end to the business of caring for children in the asylum. The duty was imposed upon the department to malie provision for con- tinuing the asylum, and there was an exigency which required the department to provide nurses for the care of the children. This duty is a public one, to which the administration of the Civil Service Law is ancillary. It was fulfilled by the appointment of the nurse, and she served as such." For these reasons a judgment in her favor for the amount of her salary was . aflBrmed. Opinion by Goodrich, P. J., McBride v. City of New York, 56 App. Div. 520. It seems very strange that in this opinion no consideration was given the provisions of paragraph 1 of section 14 of the law which were evidently designed to meet this very kind of exigency.' Temporary Appointm.ents are Within the Scope of the Kules. — Under the present statute (§ 14 [3]) it seems beyond question that even temporary appointments and employments come within the rules, and that it is within the province of the commission to adopt and en- force rules regulating such appointments, if these rules are reasonable and not inconsistent with the Constitution and statutes. The opinion of T. E. Hancock, Attorney-General of New York, dated September 19, 1894, reported in New York Civil Service Report, 1894, "Vol. 12, p. 122, to the effect that temporary services were not intended by the statute to be included in the classifications required by sec- tion 6 of the old Civil Service Law; that a classification of temporary services, if made, was outside of the intention of the statute and in- 3 Compare rule VIII (6, 7, and 8). so The Civil Service Law. effective, and, therefore, that appointing authorities might employ persons In cases of emergency, and for the performance of temporary service, without the certification of the Civil Service Commission, and that the Comptroller might legally draw his warrant for their pay- ment without such certification,— if a correct exposition of the old law is manifestly superseded by the present statute. The liberal policy embodied in rule VIII (4), practically destroys all the grounds upon which that opinion was based, and the statutory changes are vital. § 15. Promotion, Transfer, Reinstatement, Reduction — Vacan- cies in positions in the competitive class shall be filled, so far as practicable, by promotion from among persons holding positions in a lower grade in the department, office or institu- tion in which the vacancy exists.* Promotions shall be based upon merit and competition and upon the superior qualifica- tions of the person promoted as shown by his previous service, due weight being given to seniority.* For the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion.^ No promotion, transfer or reinstatement shall be made from a position in one class to a position in another class unless the same be specially authorized by the state or municipal commis- sion, nor shall a person be promoted or transferred to a position for original entrance to which there is required by this act or the rules an examination involving essential tests or qualifica- tions different from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination or attained a place upon the eligible list for such higher position.* [This section is substantially new. See 1 Beydecker's General Laws, 161.] Analogous Provisions and Cross-references. — i Compare sections 2, II (4), 7 and 8 of the original Civil Service Law. See also article V, section 9, of the present Constitution; also rule XXV. " Grade " is defined in rule I (11). 2 This provision is wholly new. 3 This provision Is new. See section 13 as to additional restrictions upon transfers. The Civil Sekvicb Law. 91 Police Assignments.— The act of 1873, chap. 335, § 77, providing that members of the police force may be removed only after written charges shall have been preferred against them, and after the charges have been publicly examined Into and after notice to the person charged, does not prevent the commissioners from transferring a mem- ber of the force from one class of duties to another w^hich he is equally •capable of performing, and thus changing the rate of compensation by assigning him to a duty not so highly paid. Riley v. New York, 96 N. Y. 381. This decision was rendered in 1884. It is very probable that it has been superseded by subsequent statutes. It is largely a question of what constitutes a removal. Police Promotions.— Compare cases cited under section 10. The New Statute Classifying and Grading Clerks and Other Em- ployees.— The Legislature of the State at its last session passed a bill which was approved April 24, 1901, and became chapter 521 of the Laws of 1901. Although this statute does not in terms affect the Civil Service Law, it does affect civil service administration. It is called an act to " classify and grade " clerks and other employees. The word " classify " as used In this act, however, has a different meaning from the same word as used in the Civil Service Law. The purpose of the act really is to grade the civil service,— to fix uniform salaries for the same work in different departments. The new act undoubtedly will greatly affect the questions relating to promotions under the Civil Service Law, and for that reason we insert it here under section 15. It Is to be noted that the amounts fixed for grades by this bill differ from those fixed by the rules of the civil service commission. (See Rule VII.) The latter, however, were fixed at a time when there was no statute upon the subject. The text of the new act is as follows: Section 1. To classify and grade, and to establish rates of com- pensation for clerks and other employes in the service of the state. — The provisions of this act shall apply to all clerks, bookkeepers, stenographers, copyists, messengers and other employes whose duties are of a clerical character in all the state departments, bureaus, com- missions and ofiices, except those otherwise fixed by law, or whose salaries were January first nine hundred and one more than the maxi- mum fixed herein. § e. All clerks, bookkeepers, stenographers, copyists, messengers, pages or other employes performing clerical service in the state de- partments, bureaus, divisions, commissions and other offices except- ing deputies, heads, chiefs and assistant heads and chiefs of divisions or bureaus shall from and after October first nineteen hundred and one be classified in one of the following grades, in accordance with the appropriations made by the legislature for such purpose. Such classification shall be made by the head of the department or commis- sion subject to the approval of the governor and filed with the comp- troller on or before October first. 92 The Civil Sebyice Law. § 3. The annual salaries of employes for each grade shall not be to exceed the following: First grade, three hundred sixty dollars; second grade, four hundred eighty dollars; third grade, six hundred dollars; fourth grade, seven hundred twenty dollars; fifth grade, nine hundred dollars; sixth grade, twelve hundred dollars; seventh grade, fifteen hundred dollars; eighth grade, eighteen hundred dollars; ninth grade, twenty-one hundred dollars; tenth grade, twenty-four hundred dollars. § 4. No person holding a position or employed in any department, bureau, commission or oflice to which tliis act applies and for which a definite salary or compensation has been appropriated or designated, shall receive any extra salary or compensation in addition to that so fixed. § 5. All departments, bureaus, commissions or offices which have been granted an appropriation for temporary clerical service, may ap- point in accordance with the provisions of this act an employe or em- ployes in any of the grades heretofore specified below the eighth grade, which employe or employes shall be paid from the special' appropria- tion made for such purpose, but from no other fund. § 6. Original appointment to the position of clerk, bookkeeper, stenographer, copyist or messenger shall be made so far as practi- cable to the lowest grade established in the department, bureau, com- mission, or oflice in which the appointment is ipade, and no position above such grade shall be filled by original appointment of a person not in the service, if there is employed in the same office or depart- ment in a similar position in a lower grade any person who is com- petent to perform the duties of the higher position who can be pro- moted. Promotions shall be made by successive grades so far as practicable, and no person shall be promoted to a position in the higher grade who has not served at least six months in the next lower grade. § 7. All acts or parts of acts inconsistent with this act are hereby repealed. § 8. This act shall take effect immediately. [Became a law April 24, 1901.] Permanent Assignments to Higher Positions are Promotions.— Under the Greater New York charter the office of roundsman has a permanent tenure and a statutory salary, and as a consequence there is a termination of a patrolman's office as patrolman when he be- comes a roundsman. This constitutes a promotion, both technically and actually, such promotion to be legal must be made as the result of a civil service promotion examination. It seems that even if a temporary assignment of a patrolman to do roundsman's duty, were legal, the officer so assigned could not draw a roundsman's pay. The decision of this court in People ex rel. Scheipp v. Knox, 48 App. Div. 477, distinguished. Opinion of Goodrich, P. J., in People ex rel. Col- bert v. Knox, 57 App. Div. 155. The Civil Sbevice Law. 93 But by a more recent decision of the Court of Appeals, the right of police commissioners to promote for bravery has been recognized. Compare discussion of the subject under sections 10 and 13. Practicability of Filling Positions As the Eesult of a Promotion ^Examination, to he Determined From the Greneral Nature of tlie Positions and Not from Special Circumstances Surrounding the Particular Position at the Time It Becomes Vacanrt. — Various cases involving the question as to whether positions in the higher grades may, in the discretion of the Civil Service Commission, be filled as the result of original entrance examinations, or must be filled as the result of a promotion examination limited to those in the lower grades, arose under the Illinois Civil Service Act in connection with the po- lice force of Chicago. Among these cases were Mather v. Kerfoot and People ex rel. v. Ptacek, in which an opinion was rendered by Judge Tuley, of the Circuit Court of Cook County, on May 23, 1900. Memorandum of opinion appears in Chicago Civil Service Commis- sion's Report for 1900, at page 84. We abstract extensively from that opinion because the questions are not only of great importance, but because the Illinois statute is in many particulars similar to the New York statute upon the subject, and there appear to be no New York decisions upon the questions. " One of the principal questions raised by the issues in these cases, is as to the right of the Civil Service Commission to hold under sec- tion 6 of the act, ' original primary examinations ' for appointments to all places and grades in the police department of the city, which examinations shall be public, competitive and free to all citizens of the United States, or whether appointments to all places above that of patrolman shall be made under, section 9 of the act by promotion — examinations therefore competitive among such members of the next lower rank or grade as may desire to submit themselves for such ex- amination. In the view the court takes of this act, the Civil Service Commissions have been under a misapprehension as to their powers and duties under section 9 of the act, and as to their right to hold an original examination (under section 6) for positions above that of patrolman. The commission has no judicial powers, nor has it general legislative powers (unlimited where not restricted), but it is purely an administrative body to which the legislature has del^ated admin- istrative powers and duties. All its rules must find their warrant In the Civil Service Act. These rules must be general in their nature, like laws. The commission has no power to decide as each vacancy arises whether the examination shall be original or promotional, nor whether it is practicable in that particular vacancy to fill it by pro- motional examination. Such a construction would leave the civil service subject to all, or nearly all, the evils that the act was in- tended to remedy. It would open the door to favoritism by bringing in outsiders to compete with those in the service, and would enable those of a less grade to become advanced and promoted over those of 94 The Citil Service Law. a higher grade. It would render nugatory the requirement that all promotions, shall be on a basis of seniority of service, and would take away the incentive to the faithful and efficient discharge of their du- ties by those holding positions. Changing the method of examina- tions, making them original or promotional at the will of the com- mission, has been the cause of confusion and uncertainty, in the past, in the administration of the act, and, if continued, must bring the whole civil senice system into reproach and contempt. It is a mis- demeanor, by section 24. to violate a rule promulgated in accordance with the act, and punishable by fine or imprisonment in the county jail. The commissioners have no more right to violate their own rules than has any outsider. Section 9 (of the Illinois act) provides as to the power of the commission in regard to promotions: 'The commission shall hy its rules provide for promotions in such classified service on the basis of ascertained merit and seniority of service and examination, and shall provide, in all cases where it is practicable, that vacancies shall be filled by promotion.' [The language of the New York statute differs considerably. It does not in terms provide for rules as to promotions. But undoubtedly that duty is imposed upon the com- mission under the general provisions of section 6. — Author.] The first clause of the above paragraph is clearly mandatory that the com- mission shall provide by its rules for promotion, etc. The second clause is that ' it shall provide in all cases where it is practicable that vacancies shall be filled by promotion.' This must be read, beyond question, that it shall provide by its rules in all cases where it is prac- ticable that vacancies shall be filled by promotion. It is the duty of the commission to ascertain what offices it is practicable to»fill by promotion, by competitive examination on the basis of ascertained merit and seniority of service. If the next lowest grade consisted of only one or two, or even three, persons, the commission could deter- mine that section 9 contemplated that the next lowest grade should consist of at least four persons who could become applicants and from among whom three could be certified as required by section 9, and, therefore, that the office could not be filled by a promotional ex- amination. The commission must determine by rule in what cases promotion by examination from those comprising the next lowest rank, is practicable; that is, what offices it is practicable to fill by a pro- motional examination, and make a rule as to the same, and the rule must apply to all vacancies in that same office that may occur [and under the Illinois statute] must be printed and published and cannot take effect until ten days after publication of the notice required by section 5. It will be noticed that the remainder of section 9 bears out this construction as it proceeds with mandatory language. ' AH examinations (for promotions) shall be competitive among such mem- bers of the nixt lower rank as desire to submit themselves to such examination.' When the act says that all examinations for promo- tion shall be among such members of the next lower rank as desire The Civil Seevice Law. 95- to submit themselves for examination, It necessarily excludes all other persons from such examination, and when also it requires that all promotions shaU be on the basis of seniority of service, it is diflBcult to discover how an outsider not in the police service (as, for instance, a newspaper reporter who took an examination for inspector) could be entitled to compete in such an examination. * * * Only two kinds of examinations appear to be expressly provided for In the act, one under section 6, of applicants for original appointment, the other under sec- tion 9, of applicants for promotion. The law contemplates that these- can be held at any time, and that eligible lists for original appoint- ments as patrolmen and for promotion to any branch or grade of the service shall be made by the commission. It is not necessary to wait for a demand for more patrolmen or for a vacancy in the classified civil service to occur in order to have an examination. The eligible lists are presumed to be on hand so that a position or vacancy can be filled at once. The first examination (section 6) being of applicants for original appointment, must necessarily be construed as pertaining only to the office of patrolman, because to construe that (section 6) as authorizing an examination for every position or grade, an exami- nation, public, competitive and free to every citizen of the United States would be to practically do away with all promotion examina- tions. Section 9 would have no meaning under such a construction,, and the evils of the ' spoils system ' would be little, if any mitigated." Increase in. Salary — When Not a Promotion. — In the recent case of People ex rel. Lodholz v. Knox, 58 App. Div. 542, it appeared that the relator passed a competitive examination for the position of topo- graphical draughtsman, and on July 15, 1897, received a permanent appointment, — the salary at the time of the appointment was $1,320. In October, 1900, his salary was raised to $1,800 a year. The munici- pal civil service commission refused to certify to the legality of the increase, claiming that the increase amounted, in fact, to a promotion under the White Law. The rules of the municipal commission, so far as they affected this question, provided as follows: "Positions in the competitive class are graded according to the fixed limit of compensation as follows: * * * Group 3. — For all architectural,, civil or mechanical engineering positions, as follows: * * * Third Grade — Leveler. Annual compensation of more than $1,200, but not more than $1,320. Fourth Grade — Transitman of Computer^ Draughtsman. Annual compensation of more than $1,320, but not more than $1,800. The court stated the issue thus: " The civil service commissioners insist that because the relator had been receiving a salary of $1,320 and not more, he is, therefore, in the third grade named, which includes only the position of leveler, and not in the fourth grade, in which draughtsmen are Included. Their claim is substantially that the grade is fixed by the salary and not by the position, and no matter what may be the office to which a man has been appointed, if he receives a salary of a certain amount 96 The Civil Sekvice Law. ie is not deemed for purposes of classification to hold an office in the position to which he has been appointed, but an office in the grade in which that amount of salary places him. For instance, according to the claim of the defendants, if a man has been appointed to the office of principal assistant engineer, which is in the sixth grade, and of which the compensation may be $3,000 a year, and for some pur- pose his compensation should be fixed temporarily at $900, which is the compensation of the office of axman, he would be an axman and not a principal assistant engineer, and could not receiye any larger salary than $900 until he had been re-examined for the position of principal assistant engineer, for which he had already just passed a civil service examination, although he had been appointed to and had been performing the duties of that office. " The relator, on the contrary, insists that the grade of the man is fixed by the position which he occupies and for which be has passed a civil service examination, and that although when he enters upon that position he does not receive the minimum amount of salary al- lotted to it, yet it may be increased to the maximum amount of that grade without its being a promotion. Which of these two contentions is correct Is the question for determination." Judge Rumsey, who delivered the opinion of the majority of the court (Patterson and O'Brien, JJ., concurring, and Van Brunt, P. J., and Ingraham, J., dissenting), said: " Section 15 of the law is the one which the civil service commissioners rely upon as preventing the increase of the relator's salary to the highest amount permitted for a topographical draughtsman. The statute prescribes that for the purposes of that section an increase in the salary of any person hold- ing an office or position beyond the limit fixed for the grade in which such office or position is classified shall be deemed a promotion, and they say, because the relator's salary was increased beyond the limit fixed for the grade in which his salary classified him, he must be deemed to have been promoted, and it was necessary that he should submit to another examination. But it will be noticed that the stat- ute does not say that for the purposes of promotion the increase of salary shall be beyond the limit of the grade in which the salary is classified, but beyond the limit of the grade in which the position is classified. The criterion is not the salary which has been paid, but the grade in which the position is classified. It is evident that this section has in view not the salary which any man shall receive, except as incidental to the position, but that with respect to promo- tions from one grade to another, the thing to be considered is the position which he held. It is the position which fixes the grade he is in, not the salary. For Instance, the statute provides that vacan- cies shall be filled from among persons holding a lower grade in the group in which the vacancy exists. It does not say that it is to be filled by persons having a salary less than the minimum of the grade in which the vacancy exists. Suppose there should be a vacancy in The Civil Seevice Law. 97 this particular position. The relator was appointed a topographical draughtsman, which is in the fourth grade. Is the vacancy in his position to be filled by a promotion from the office of leveler, which is in the third grade next below, or by promotion from the position of chainman or rodman, who are of the second grade? Clearly it is the position and not the salary which fixes the grade from which a pro- motion is to be made, which shows that what the Legislature evi- dently had in view was that the grading should be determined, not by the pay received, but by the duties performed. " The increase in salary, called a promotion, is an increase beyond the maximum for the grade in which the position is classified. The Important fact is that by the increase the man receives a salary larger than can properly be paid to one holding his position. The fact that he formerly had a less salary than the one which might have been paid to one in his position is not made controlling by the law. Al- though the salary of this man was fixed at $1,320 at first, neverthe- less he did not cease to be a topographical draughtsman when the commissioners graded his salary below the minimum to one in his position. He still had the appointment of draughtsman and did the work; and when his salary was increased to $1,800, that was not be- yond the limit fixed for the grade in which his position was classified, although it was beyond the limit of the salary in the third grade. But his position was not in the third grade; it was in the fourth grade, and whatever salary he might have been receiving, the civil service commissioners having fixed the maximum for bis grade at $1,800, they cannot say, when his salary is increased to that sum, that, as he has been receiving $1,320, the salary of a leveler, he, there- fore, was a leveler, and the increase was a promotion which the rules forbade without a new examination." Opinion of Rumsey, J., in People ex rel. Lodholz v. Knox, 58 App. Div. 541. In the Federal Service Superior Oflacer is Final Judge of Effi- ciency of Previous Service of Party Seeking Promotion or Beten- tion.— Section 3 of the act of August 15, 1876 (Supp. R. S., Vol. 1, p. 120), declared: " Whenever, in the judgment of the head of any department, the duties assigned to a clerli of one class can be as well performed by a clerk of a lower class, or by a female clerk, it shall be lawful for him to diminish the number of clerks of the higher grade and increase the number of clerks of the lower grade within the limit of the total appropriation for such clerical service: Provided, That in making any reduction of force in any of the executive departments, the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States, and the widows and orphans of deceased soldiers and sailors." Un- der this proviso the comparative performance of clerks is to be de- termined by the judgment of the head of any department The 7 98 The Civil Seevice Law. qualifications of the clerk to be retained are necessarily matters com- mitted to the judgment of the head of the department within the in- tent and meaning of the statute; and his judgment, as evidenced by his records and ratings, is not subject to review and correction by the courts. Keim v. United States, 33 Ct. of Claims Rep. 174. See Comment upon this case, 15 TJ. S. Civil Service Commission's Re- port, p. 204. What is a Transfer? — Section 3154 of the Federal law, passed Au- gust 15, 1876, provides that " the commissioner (of internal revenue) may also transfer any inspector, ganger, storelieeper, or storekeeper and gauger from one distillery or place of duty, or from one col- lection district to another." Held, this section does not authorize the appointing power to make a change in the nature of a reduction. It only authorizes the commissioner to transfer the officers mentioned in it from one place of duty to another place of duty in the same district, or from one collection district to another. It does not in ex- press terms say that he may transfer the officers mentioned in it from one position to another in the same distillery. Butler v. White, 83 Fed. Rep. 578, reversed, 171 U. S. 366, but on grounds not affecting this ruling. A " transfer " from the " head or chief position " to a secondary position is a change of rank in a public position, which is necessarily a removal. Butler v. White, 83 Fed. Rep. 578; reversed, 171 U. S. 366, on grounds not affecting this ruling. Transfers. — Although it is manifestly the intent both of the Con- stitution and of the Civil Service Law that, as a general rule, all va- cancies shall be filled either by original appointments or by the pro- motion of persons filling positions of a lower grade, yet not only the present Civil Service Law, but also the civil service rules, have recog- nized the fact that successful administration may often require that a position be filled by the transfer of some one who has had previous experience in the official service. The statutory provisions relating to transfers are contained in two sections of the law. Section 13 of the Civil Service Law provides that " No person shall be transferred to * * * any position subject to competitive examination, unless he shall have previously passed an open competitive examination equivalent to that required for such position, or unless he shall have served vnth fidelity for at least three years in a similar position." Section 15 provides that " No transfer shall be made from a position in one class to a position in another class unless the same shall be authorized by the State or municipal commission, nor shall a person be transferred to a position for original entrance to which there is re- quired by this act or the rules an examination involving essential tests different from or higher than those required for original en- trance to the position held by such person, unless he shall have passed the examination or attained a place upon the eligible list for such higher position." The Civil Seeyice Law. 99 There has been a variance of construction given to these two pro- visions. It has been claimed that they are inconsistent with each other, but it is our opinion that a careful study of the same shows that they are in harmony. To a large degree they cover the same ground. In their application to a few cases one imposes restrictions in addition to those imposed by the other. For a proper understanding of these provisions, it should first be noted that they are all in the negative. They are restrictions. None of them are affirmative grants of power. The power or the right of transfer seems, so far as the statute is concerned, to be general except as restricted by the pro- visions of section 13 and section 15. Analyzing these restrictions it is to be noted that no transfer, if it is from one class to another, can be made without the approval of the Civil Service Commission. Let us now consider the other restrictions upon transfers imposed by sections 13 and 15. Section 15 has this general restriction: *' Nor shall a person be promoted or transferred to a position for original entrance to vrhich there is required by this act or the rules an ex- amination involving essential tests or qualifications dlfCerent from or higher than those required for original entrance to the position held by such person, unless he shall have passed the examination or at- tained a place upon the eligible list for such higher position." This Is a statutory restriction. It cannot be abrogated or waived by the Civil Service Commission. It is a general restriction. It applies to everyone who seeks a transfer of the kind referred to. Its terms em- brace not only the person who may have been recently appointed in the civil service, but also the person who may have served for three years with fidelity, and the person who may have spent his lifetime in the civil service. If the position to which transfer or promotion is sought be one for original entrance to which there is required by the Civil Service Act or rules an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person, the transfer or promo- tion cannot be granted unless the person seeking it shall have passed the examination or attained a place upon the eligible list for such higher position. What is meant by the words " an examination involving essentia! tests or qualifications different from or higher than those required for original entrance to the position held by such person?" The word " essential " would seem to imply that the examination must be fundamentally different; that only a slight variance in the subject- matters of examinations or a slight difference In the relative weights or a slight difference in the nature of the questions should be ignored. But the use of the word " higher " in the phrase " different from or higher," shows that the examinations need not be different in nature in order that the restriction may apply, but that a difference in degree Is recognized by the statute as a sufficient ground for restricting the light of transfer. In other words, the Legislature In authorizing trans- 100 The Civil Service Law. fers did not intend to permit transfers to be made in sucli a manner as to destroy the rights of others to promotion; neither did it intend to permit a person to seeli a transfer to a position for which the ex- amination was essentially different and thus prejudice the rights of one who had passed an open competitive examination for that place. We believe that this restriction in section 15 should be construed strictly in limitation of the right of transfer and in preservation of the rights of those upon eligible lists and those entitled to promotion. In other words, it seems to us that where civil service examinations do differ in subject-matter, in weights and in the character of the ques- tions, to the extent that the Civil Service Commission has not thereto- fore prescribed the same examination for the two places, it must be held that they involve essential tests or qualifications which are either different or higher. But however difficult it may be to satisfactorily determine just when examinations do involve essentially different or higher tests or qualifications, this question arises only in the case of a transfer from one competitive position to another competitive position. It certainly does not arise when the transfer that is sought is from a position in the exempt class. It seems to us almost equally time that it does not arise when the transfer that is sought is from the non-competitive to the competitive class; and, as we have said, in transfers from a position in the competitive class to another position in the competitive class if the examinations prescribed by the Civil Service Commission for these two positions are different, we believe that they must, un- der the law, be said to involve tests or qualifications that are either essentially different or higher. Transfers of the three Isinds last men- tioned; that is, from the exempt to the competitive or non-competitive, from the non-competitive to the competitive, or from a position in the competitive to another position in the competitive, even though the examinations for the two places involve essentially different or higher tests, are not forbidden by the law, but, in fact, under certain con- ditions, are impliedly allowed, subject, in some cases, to the approval of the Civil Service Commission. What are those conditions? In the language of the statute they are, " unless he shall have passed the examination or attained a place upon the eligible list for such higher iwsitions." Inasmuch as the transfers may be to non-competitive positions as well as to competitive positions, it seems quite evident that the phrase " unless he shall have passed an examination " refers to the condition imposed upon one who seelss a transfer to a non-com- petitive position; while the phrase "obtained a place upon the eligible list " refers to the condition imposed upon one who seeks a transfer to a position in the competitive class. Let us apply these principles to hypothetical cases: First. A. seeks a transfer from a position in the exempt class to one in the competi- tive class. It cannot be granted unless A. shall have attained a place upon the eligible list for the latter position. Second. A. seeks a transfer The Civil Seevice Law. from a position in the non-competitive class to a position in the com- petitive class. It cannot be granted unless he shall have previously attained a place upon the eligible list for the position to which he seeks transfer. Third. A. seeks a transfer from a position in the ex- empt class or from the competitive class to one in the non-competitive class. It cannot be allowed unless A. shall have passed the non- competitive examination for that place. Fourth. A. seeks a transfer from a position in the competitive class to another position in the same class for which the examination is essentially different or higher. It will not be granted, unless A. shall have attained a place upon the eligible list for the latter place. Fifth. A. seeks a transfer from a posi- tion in the competitive class to one in the same class, for which the examination is essentially the same. So far as section 15 is concerned he can be transferred without getting the consent of the commission and without trying any examination, for in so far as section 15 is concerned, if he seeks transfer from one competitive position to another competitive position, and if the examinations for those two places are not essentially different or higher, then it is Immaterial whether or not A. has ever passed a competitive exami- nation for the place, and the place may have been so classified after he was appointed. But see below as to the restrictions of section 13. So far as section 15 is concerned the transfers which we have be- fore considered in hypothetical cases cannot be granted, except upon the conditions therein declared, and in some cases subject to the ap- proval of the State or municipal commission. But, subject to that approval, so far as section 15 is concerned, upon the compliance with those conditions those transfers can be allowed; in other words, so far as section 15 is concerned, and subject to the approval of the com- mission, A., who holds a position in the exempt class, which he may have secured by political influence, may be appointed to a position In the competitive class if he has attained a place upon the eligible list for the latter position, notwithstanding he may stand lowest upon that eligible list, and notwithstanding that list may be filled with the names of a large number of people, who, in open competitive examination, have sought it and have shown their superior qualifica- tions for it. Is there anything in section 13, first, which abolishes any of the limitations imposed by section 15; or, secondly, is there any further restriction Imposed by that section? That section provides that no person shall be transferred to, or assigned to perform the duties of any position, subject to competitive examination, unless he shall have previously passed an open competitive examination, equivalent to that required for such position, or unless he shall have served with fidelity for at least three years in a similar position. What is the meaning of the words " unless he shall have previously passed an open competi- tive examination, equivalent to that required for such position?" We submit that this is the affirmative expression of the same idea which 102 The Civil Seevice Law. Is negatively expressed in section 15 in the words, " an examination involving essential tests or qualifications different from or higher than those required," etc. If two examinations involve essentially different or higher tests they cannot be said to be equivalent. If they do not Involve essentially different or higher tests, then they are equivalent. But it is to be noted that under section 13, if the transfer which is sought is to a position subject to competitive examination, the would-be transferee must have previously passed an open competitive examination equivalent to that required for such position, otherwise the transfer is not permitted by the law, except in the case .of one who has served for three years with fidelity in a similar position. In other words, except in the case of the three-years' man, if the transfer which is sought, be to a position subject to competitive examination, the open competitive examination must be passed by the would-be transferee. It is not enough that he is then holding a competitive position which is so much like the position sought that the examina- tions for the two positions are not essentially different. It is in this respect that section 13 goes farther than section 15 and imposes an additional restriction. Next let us consider the phrase in section 13, " or unless he shall have served with fidelity for at least three years in a similar position." We submit that the phrase " similar position " embodies the same idea as that which is suggested by the words in section 13, " equiva- lent examinations," and by the words in section 15, " examinations not involving essentially different or higher tests or qualifications." In other words, in our opinion, only those positions for which equiva- lent examinations are required can be said to be similar positions. Positions are not similar, if for original entrance to one of them, there is required by the Civil Service Act or rules an examination involving essential tests or qualifications different from or higher than those required for original entrance to the other. What preference then or what advantage has the person, under section 13, who has served with fidelity for at least three years in a similar position? To us it seems that the only advantage given to him is exemption from that open competitive examination which is re- quired of others who seek transfer to a position subject to competi- tive examination; but this does not, we believe, do away with the restriction in section 15, which prevents his transfer to a position for original entrance to which there is required an examination In- volving essentially different tests or qualifications than those required for original entrance to the position then held by him, until he shall have attained a place upon the eligible list for such higher position. The sole advantage, it seems to us, which the person who has served with fidelity for at least three years in a similar position has, is that in case he is holding a position then classified in the competitive class, even although he was appointed to such position without trying a civil service examination, and, although he has never passed any civil The Civil Seevice Law. 103 ■service examination, he may, in view of liis three years service in a similar position, be transferred without any examination to a similar position, that is, to one for which no examination essentially different or higher is required; while a person who has not so served for three years must talie the competitive examination. The conclusion then would seem to be this. In transfers to a posi- tion in the competitive class, if the position held and the position sought are such that different Isinds of examinations are required for ■original entrance to them, no matter how long the would-be trans- feree has been in the service, he must have attained a place upon the eligible list for the place to which he seeks to be trans- ferred. If the positions are such that examinations for them are not essentially different, the transferee must, nevertheless, previous to his transfer, pass an open competitive examination equivalent to that re- quired for the position to which he seeks to be transferred unless he has served with fidelity for at least three years in a similar position. In an earlier paragraph we have stated that subject to the condi- tions of section 15, and also subject to the approval of the Civil Service Commission, transfers from the exempt class to the com- petitive class are allowable under the law. It must, however, be said, that in passing upon applications for transfers the constitutional mandate that merit and fitness shall be ascertained, as far as practi- ■cable, by competitive examination, must be observed. It is excep- tional to permit a transfer from the exempt to the competitive class under any circumstances, and as it naturally results in grievous dis- appointment, if not in Injustice to those who have attained a place on the eligible list as the result of a competitive examination, such transfers should be allowed by the commission only where it is ap- parent that they will greatly benefit the service. The service, rather than the rights of applicants, should be the end kept in view. Compare State Rule XV. Transfers from Municipal to State Positions — Vice Versa — Trom County to City or State. — The important question arises as to the power of the Civil Service Commission to authorize or approve transfers from the civil service of the State to the civil service of a county or city, or from the civil service of a county or a city to the civil service of the State, or from the civil service of one county to that of another county, or from the civil service of one city to that of another city, etc. The law seems broad enough to empower the commission to authorize transfers otherwise permitted by law from the civil service of the State to that of one of its civil divisions, and vice versa. It would seem, however, that such transfers should not generally be allowed from the State to the municipal service or vice versa. The civil service of the State and of each of its mu- nicipalities should be regarded as distinct. Separate examinations by independent examiners are conducted for the State service and for 104 The Civil Seevice Law. the services of the several cities. It cannot be assumed that these examinations are the equivalents one of the other, when there is no provision for securing uniformity either in the examinations or in the rating of the examination papers. When appointments are made from the same list for both State and county service, as is the case, the examinations all being conducted and rated by the State Commission, it would appear that transfers from the State to the county service, and rice versa, are sufficiently safeguarded, but it is an open question whether such transfers from the State service to the county service are authorized by the law, or are calculated to benefit the service. Keinstatement. — What is Separation from the Service. — ■ Where one has left the service his separation from it continues until his acceptance of a new appointment. An unaccepted appointment, or an appointment which is cancelled because of his failure (excusable or otherwise) to accept it, does not constitute a reinstatement or re- entry into the service. Opinion of O. W. Chapman, Solicitor-General, United States. Approved: W. H. H. Miller, Attorney-General of the United States, dated October 26, 1889; reported in the Sixth Report of the United States Civil Service Commission, 1888-1889, p. 85. § 16. The Non-Competitive Class. — The non-competitive class shall include such positions as are not in the exempt class or the labor class and which it is impracticable to include in the com- petitive class. Appointments to positions in the non-competi- tive class shall be made after such non-competitive examination as is prescribed by the rules. [This section is new in form only.i See Heydecker's General Laws, 161.] § 17. The Labor Class in Cities — The labor class in cities^ shall include unskilled laborers and such skilled laborers as are The Won-com.petitive Class. — i All civil service statutes have recog- nized the existence of this class. See section 2, II (7) of original Civil Service Law. Compare rule XIX. Analogous Provisions and Cross-references. — 2 Compare sections 9 and 12 (4), which provide that laborers in the State service shall be in the exempt class, and see the cases cited under those sections. This is in accordance with the provisions of all the Civil Service Acts that have been enacted. See section 7 of the original act. The first pro- vision requiring the registration of laborers In cities seems to have been in Laws of 1898, chapter 186. For definition of the words "laborer" and "unskilled laborer," see rule I (14). As to what positions in State service are placed in the labor class, see regulation XII. The Civil Seevice Law. 105 not included in the competitive class or the non-competitive class. Vacancies in the labor class in cities shall be filled by appointment from lists of applicants registered by the munici- pal commissions. Preference in employment from such lists shall be given according to date of application.^ There shall be separate lists of applicants for different kinds of labor or employment, and the commissions may establish separate labor lists for various institutions and departments. Where the la- bor service of any department or institution extends to separate localities, the commissions may provide separate registration lists for each district or locality. The commissions shall re- quire an applicant for registration for the labor service to fur- nish such evidence or pass such examination as they may deem proper with respect to his age, residence, physical condition, ability to labor, skill, capacity and experience in the trade or employment for which he applies. IThe section is new in form, and many of its requirements have not "heretofore Men substantially embodied in any statute. 1 Heydecker's Gen- eral Laws, 161.] § 18. Official Roster; Reports of Appointing Officers. — N"o per- son shall be appointed to or employed in any position in the classified service of the state or of any city or civil division thereof for which rules have been prescribed pursuant to the provisions of this act, until he has passed an examination^ or is shown to be especially exempted from such examination in conformity with such rules and the provisions of this act. It shall be the duty of each appointing officer of the state or any such civil division thereof, except cities, to report to the state Veterans Have a Pref erenoe in Employment. — i The civil service provision of the Constitution gives to veterans a " preference in ap- pointment and promotion, without regard to their standing on any list from which said appointment or promotion may be made." Section 20 of the Civil Service Law, In the beginning of the section, gives them preference in appointment and promotion, provided thedr qualifications shall have been ascertained as provided in the civil service act and rules. 'The Constitution contains no express reference to employment, yet by section 20 it is provided that veterans shall be given a prefer- ence upon lists of registered applicants for employment, as though their applications had been filed previous to the applications of non- veterans. Analogous Provisions and Cross-references. — 2 Analogous provision in section 7 of the original Civil Service Law. Compare section 13. 106 The Civil Sebtice Law. civil service commissioii forthwith upon such appointment or employment the name of such appointee or employee, the title and character of his oifice or employment, the date of the com- mencement of service by virtue thereof and the salary or com- pensation thereof, and to report from time to time and upon the date of official action in or knowledge of each case, any sepa- ration of a person from the service, or other change therein, and such other information as the commission may require, in or- der to keep the roster hereinafter mentioned.* The commis- sion shall keep in its office an official roster of the classified civil service of the state and of each of the civil divisions thereof for which rules have been prescribed pursuant to this act, except cities, and shall enter thereon the name of each and every per- son who has been appointed to, employed, promoted or rein- stated in any position in such service, upon such evidence as it may require or deem satisfactory that such person was ap- pointed to, promoted or reinstated in the service in conformity with the provisions of law and the rules prescribed pursuant to this act. The official roster shall show opposite or in con- nection with each name the date of appointment, employment, promotion or reinstatement, the compensation of the position, the date of commencement of service, and date of transfer in or separation from service by dismissal, resignation, cancellation of appointment or death.* In like manner the municipal com- mission of each city shall keep in its office an official roster of the classified civil service of such city, and shall enter thereon the name of each and every person who has been appointed to, employed, promoted or reinstated in any position in such ser- vice, upon such evidence as it may require or deem satisfactory that such person was appointed to, or employed, promoted or reinstated in the service in conformity with the provisions of law and of the rules, and it shall be the duty of each appoint- ing officer of such city to report to such municipal commission in like manner as is hereinbefore provided for reports from ap- pointing officers to the state commission. [Xeir in form. See 1 Betidecker's General Laws, 162.] 3 Analogous provision in section 2, II (8) of original Civil Service Law. 4 Substantially the same provision for reports by appointing officers of the State, a roster or record of the State service was contained In the Civil Service Law, as amended by Laws 1894, chapter 681. The Civil Sbbvice Law. 107' Rules Governing Appointments. — Rules 11, IV, VI, VIII, XIX and XXII, and regulation VII (6). Bule as to Bemovals. — Rule XXIII. Kiile as to Boster. — Rule XXI. Construction of the Section.— Section 18 and section 19 are con- sidered in People ex rel. Wilson v. Knox, 45 App. Div. 537. Boster to be Kept.— It is the duty of the Civil Service Commission to keep in its office a complete list of all officers, clerks and other persons in the public service of the State, whether they are exempt or competitive, and to certify to the Comptroller every change oc- curring in any such office or employment forthwith on the occurrence of the change. Opinion of Parker, J., in People ex rel. Ewell v. Roberts, 10 Misc. 764. Civil Service Commission Bound by Statement of Appointing Officer as to Duties of Persons. Borne on Pay-roll. — By rule 32 of the municipal civil service rules of New York city, the duty is devolved upon " the appointing officers of any department, office, bureau or in- stitution whose employees are paid direct from the treasury of the city " to furnish " the municipal commission with pay-rolls showing the names of the persons to be paid, residence, title of position held or kind of service performed by each person, the rate and amount of compensation to which he is entitled and the period for which he is paid, and to certify that the persons named therein are employed solely in the performance of the appropriate duties of the positions and employments indicated, and that they have not been assigned to perform duties appertaining to any other title." If pursuant to this section the appointing officers of the fire and police departments have properly furnished to the civil service commission a pay-roll contain- ing the names of certain persons borne on the rolls as firemen, but assigned to act as pilots of fire-boats, under authority of sections 728 and 292 of Greater New York charter, and if the certificate com- plies with the rule, then the civil service commission is without power to interfere. It cannot withhold its certificate upon the ground that such persons have been assigned to perform other duties than those designated in the pay-roll. If the before-mentioned appointing officers have disobeyed the provisions of the rule, then the proceeding to remedy the wrong should be directed against them, and not against the municipal civil service commission. Opinion of Fitzgerald, J., in People ex rel. Silvey v. Civil Service Commission, 30 Misc. 519. § 19. Disbursing Officers. — It shall be unlawful for the comp- troller or other fiscal officer of the state or any city or civil di- vision thereof for which civil service rules have been prescribed pursuant to this act, to draw, sign or issue, or authorize the drawing, signing or issuing of any warrant on the treasurer or other disbursing officer of the state or such city or civil division 108 The Civil Seevice Law. thereof, for the payment of, or for the treasurer or other dis- bursing officer of the state or of such city or civil division thereof, to pay any salary or compensation to any officer, clerk or other person in the classified service of the state or of such city or civO. division thereof, unless an estimate, pay-roll or ac- count for such salary or compensation, containing the names of the persons to be paid, shall bear the certificate of the state civil sei-vice commission, or in case of the service of a city, the certificate of the mimicipal civil service commission of such city, that the persons named in such estimate, pay-roll or ac- count have been appointed or employed or promoted in pur- suance of law and of the rules made in pursuance of law. Any officer, clerk or other person entitled to be certified by said com- mission, or either of them, to the comptroller, treasurer or other fiscal or disbursing officer of the state or any city or civil di- vision thereof, as having been appointed or employed in pur- suance of law and of the rules made in pursuance of law, and refused such certificate, may maintain a proceeding by man- damus to compel such commission or commissions to issue such certificate. Any sums paid contrary to the provisions of this section may be recovered from any officer or officers making such appointment in contravention of the provisions of law and of the rules made in pursuance of law, or any officer signing or countersigning, or authorizing the signing or countersigning of any warrant for the payment of the same, and from the sure- ties on his official bond, in an action in the supreme court of the state, maintained by a citizen resident therein, who is as- sessed for and is liable to pay, or within one year before the commencement of the action, has paid a tax^ therein. All Analogous Provisions. — i A substantially similar provision, so far as the State service was concerned, appeared for the first time in the Civil Service Law, as amended by Laws of 1894, chapter 681, but the provisions In that act relating to the payment of city employees were not so definite. They were as follows: " In each city of the State in which rules and regulations have been adopted under the provisions of this act, any officer of such city whose duty it is to sign or coun- tersign warrants, shall not draw, sign or issue, or authorize the draw- ing, signing or issuing, of any warrant on the treasurer or other dis- bursing officer of such city for the payment of salary to any person in its service whose appointment has not been made in pursuance of this act, and the rules in force thereunder." The Civil Seevicb Law. 109 moneys recovered in any action brought under the provisions of this section must, when collected, be paid into the treasury of the state or such civil division thereof, except that the plain- tiff in any such action shall be entitled to receive for his own use the taxable costs of such action.^ INew in form. See 1 Heydecker's General Laws, 162.] No Salary to be Paid if Appointment is not in Accordance with Classification, Even if Classification is Erroneous.— The recent case of Rowley v. City of Rochester, 34 Misc. 291, opinion by Judge Davy of the Supreme Court, was a case In which an action to recover salary was brought by one who had been appointed as clerk of the city treasurer, a position which had been classified by the municipal com- mission as competitive, but the appointment to which had not been made from an eligible list. Judge Davy, after carefully considering the duties of the position, held that the position should have been placed in the exempt class, and quoted the decision of the Court of Appeals in People ex rel. Sweet v. Lyman, 157 N. Y. 387, in which it was said that the Civil Service Commission could not change the actual status of a position by declaring one which is actually con- fidential not to be so, nor was it vested with power to repeal a valid statute or to practically annul it by declaring a position to be com- petitive when the law has provided otherwise and the position is plainly of a strictly confidential character; but the judge went further and said: "Assuming that the position held by the plaintiff should have been placed in the exempt class, and that the plaintiff was not required to pass a civil service examination, the question is whether he can maintain this action to recover his salary when he has not been legally appointed. Under the Civil Service Law, the plaintiff is not entitled to recovery his salary until the pay-roll is certified by the municipal civil service commission. * * * The act further pro- vides that any ofiicer, clerk or other person entitled to be certified by said commission may maintain proceedings by mandamus to compel such commission to issue such a certificate. The act also prohibits the payment of salaries to appointees and employees In the various depart- ments of the city government who havo been appointed contrary to the provisions of the law and the civil service rules made in pur- suance thereof. It seems to me that the intent of the Legislature, as expressed in this act, is that all appointments must be made in conformity to the rules adopted by the civil service commission, and as long as the rules remain in force an appointment in violation thereof is illegal and void. * * * The position which the plaintiff holds cannot be deemed to be in the exempt class, because it Is not named in that class in the rules adopted by the municipal civil ser- a Compare section 27 of the present law. 110 The Civil Seevice Law. vice commission. Tlie statute expressly provides ttiat no office or position shall be deemed to be in the exempt class unless it is specifi- cally named in such class in the rules (Laws 1899, chapter. 370, § 12). The power, therefore, of determining whether or not the position shall be placed in the exempt class has been given by the Legislature to the civil service commission. The law further provides that no person shall be appointed to or employed in any position in the classified ser- vice of the State, or of the city or civil division thereof, for which rules have been prescribed pursuant to the provisions of this act, un- less he has passed an examination or is shown to be exempt from such examination, in conformity with such rules and the provisions of this act. Civil Service Law, § 18. * * • I must assume that the mu- nicipal civil service commission, in determining what positions should be placed in the exempt class, acted conscientiously, and that the members exercised their best judgment in making the classifications, and if they have made a mistake, and placed the position occupied by the plaintiff in the wrong class, their error is subject to review and correction by the courts; but until it is judicially determined that their classification is erroneous, the decision of the commission must be respected. The error did not justify the city treasurer in making the appointment contrary to the rules and regulations for appointments in the civil service. If the position belongs in the exempt class, the city treasurer may, by mandamus, compel the commission to place It there, and when that Is done the plaintiff can be legally appointed without passing a civil service examination. He can then have his name placed on the pay-rolls and certified to, as is required by the Civil Service Law, and draw his pay from the proper disbursing officer of the city." No Certificate, no Payment. — When an appointment is made, even although it is to a position in the exempt class, it becomes the duty of the appointing officer to inform the Civil Service Commission that the appointment was made in accordance with law. This being done, the statute enjoins upon the Civil Service Commission the duty of certifying the fact of such appointment to the Comptroller, whose duty it is thereafter to make payment to the appointee of his com- pensation as he shall become entitled to it. If the certificate is not given the Comptroller has no right to make payment. Opinion of Parker, J., in People ex rel. Ewell v. Roberts, 10 Misc. 764. " In Pursuance of Law and of the Bules Made in Pursuance of Law." — These words manifestly refer to the Civil Service Law and civil service rules alone. Civil service commissions need not consider whether other laws have or have not been violated in appointments. If the Civil Service Law has been complied with. That is the scope of their functions and the purport of their certificate. Liability for Illegal Appointments.— Note that the officer making an illegal appointment, as well as tha disbursing officer is liable for compensation paid to the appointee. The Civil Service Law. Ill Validity of Emergency Appointments wlien there is no Eligible Iiist. — A person who was not upon an eligible list was appointed as nurse In the Randall's Island Asylum; but before her appointment the department wrote the secretary of the Civil Service Commission requesting an eligible list for nurses in order to make appointments therefrom, and received an answer that no such lists were in exist- ence; the court (Second Department) said: " The Greater New York charter (Laws 1897, chap. 378), chapter 13, imposes upon the depart- ment the duty of maintaining the Randall's Island Asylum for the care of sick children. Necessarily incident to that maintenance are nurses. It is true the plaintiff's appointment Is within the require- ment of the Civil Service Law. The object of that law is to Increase the efficiency of the civil service, but it cannot construe it as intended by the Legislature to bring an end to the business of caring for chil- dren In the asylum. The duty was imposed upon the department to make provision for continuing the asylum, and there was an exigency which required the department to provide nurses for the care of the children. This duty is a public one to which the administration of the Civil Service Law is ancillary. It was fulfilled by the appointment of the nurse, and she served as such." For these reasons a judgment in her favor for the amount of her salary was affirmed. Opinion by Goodrich, P. J., McBrlde v. City of New York, 56 App. Div. 590. It seems very strange that in this opinion no consideration was given to the provisions of paragraph 1 of section 14 of the law which were evidently designed to meet this very kind of exigency. Waste of Funds.— Payment of compensation to persons employed In violation of the Civil Service Law constitutes a waste of public funds. Opinion of T. E. Hancock, Attorney-General of New York, dated January 4, 1894; reported in New York State Civil Service Commission's Report, 1894, Vol. 12, p. 109. What Appointees Bequire Certificate of Civil Service Commission. — The requirement of the certificate mentioned In section 19 Is as to prospective appointees only. * • * Persons lawfully appointed prior to the adoption of the civil ser- vice rules, under chapter 370 of the Laws of 1899, and prior to the- passage of that act, cannot be kept out of their salaries until the pay-roll which contains their names bears the certificate of the Civil Service Oommisaion that they were appointed "in pursuance of law and of the rules made in pursuance of law," and, on the other hand, those persons who were Illegally appointed gain nothing by a certifi- cate that. In the judgment of the commissioners, they were appointed " in pursuance of law. and of the rules made in pursuance of law." Opinion of Patterson J., in People ex rel. Wilson v. Knox, 45 App. Div. 537. Compare paragraph below. Section 19 of the Civil Service Law of 1899 (Laws of 1899, chap> 112 The Citil Seevice Law. 370) requires in the case of an employee of a city the certificate of the municipal civil service commission therein as to the legality of the appointment, in every case, whether it was made hefore or after the formu- lation of rules under that act. The form of the certificate, however, is to be the same in each case; therefore, the words " in pursuance * * * of the rules made in pursuance of law," as required In the certificate, can be intended to have application only to such rules as may have been In existence when the particular appointment was made, and are not confined to the rules adopted under the act of 1809. Opinion of Giegerich, J., in People ex rel. Fellows v. Dyliman, 29 Misc. 234. Compare paragraph above. § 20. Preferences, Allowed Honorably Discharged Soldiers, Sail- ors and Marines In every public department and upon all public works of the state of JSTew York and of the cities, coun- ties, towns and villages thereof, honorably discharged soldiers, sailors and marines from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion without regard to their standing on any list from which such appointment or promotion may be made, provided their qualifications and fitness shall have heen ascertained as provided in this act and the rules and regulations in pursuance thereof; and the persons thus preferred shall not be disqualified from holding any position in the civil service on account of his age or by reason of any physical disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for. Whenever any list of eligi- ble persons, prepared under authority of this act, shall con- tain the names of honorably discharged soldiers, sailors and marines, entitled to preference as aforesaid, any reference in this act or in the rules and regulations in pursuance thereof to the persons standing highest on such list, shall be deemed to indicate those standing highest of those entitled to preference by the provisions of this section, and such persons shall be given preference on any list of registered applicants for employment in the labor service, in accordance with the dates of their several applications, as though such applications had been filed prior to those of any persons on such lists not entitled to the prefer- ence provided by this section. A refusal to allow the prefer- ence provided for in this and the next succeeding section to any The Civil Seevicb Law. 113 honorably discharged soldier, sailor or marine, or a reduction of his compensation intended to bring about his resignation, shall be deemed a misdemeanor, and such honorably discharged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages and also a remedy by mandamus for righting the wrong. [See 1 Heydeclcer's General Laws, 162. With the exception of the matter in italics the section is substantially a re-enactment of the Veteran Laws in force at the time of the passage of this act.] Analogous Statutes. — There have been so many statutes relating to the preference which veterans shall have in the civil service that they have all been inserted in this book. See post. Special attention is called, however, to the words in the section which have been itali- cized by us. They show that veterans now have a preference only for appointment and promotion to positions for which some kind of an examination or test is practicable. This statute not only gives them no such preference of appointment or promotion to positions in the exempt class, but it repeals all other general laws which might have given them such preference. But notwithstanding the proviso as to examinations, veterans are to be preferred for " employment " in posi- tions in the labor class. Exclusive Preference. — The preference given In appointment and promotion is to Civil War veterans only. It is a constitutional preference. It cannot be limited or shared in by others. Neither does the Con- stitution permit secondary preferences to be given to others by statute or otherwise. All examinations must be open to all and there is and can be no preference except that given to Civil War veterans. History of Veteran Legislation. — For a history of " veteran " legis- lation, see People ex rel. Tate v. Dalton, 158 N. Y. 204; also in this work the compilation of Veteran Laws. Constitutionality of Veteran Law of 1887.— The act of 1887 (chap. 464), giving honorably discharged Union veterans a preference in public employment was constitutional. It embraced . ordinary labor- ers; and under that act their rights could be enforced by mandamus. Matter of Sullivan, 55 Hun, 285; S. C, 28 St. Rep. 566; 8 N. Y. Supp. 401. Construction. — Chapter 716 of the Laws of 1894 and chapter 577 •of the Laws of 1892, former " Veteran " Laws with provisions analogous to the above section, are construed in the opinion of Bar- rett, J., in People ex rel. CunlifEe v. Oram et al., 34 App. Div. 313. Special Brooklyn Statute and Provisions of Greater New York Charter. — The provisions of the Greater New York charter, whereby the city of Brooklyn was consolidated with and became a part of the •city of New York, and whereby, under section 1615, the corporation of Brooklyn itself ceased to exist and all of the offices forming a part Of its local government were abolished, wiped out the old Brooklyn 8 114 The Citil Service Law. charter and substituted in its place the charter of the Greater New York, and with the departure of the old charter there disappeared whatever remained of the Brooklyn local Veterans Act. Opinion of Haight, X, in People ex rel. Tate v. Dalton, 158 N. Y. 204. Constitutionality of Law of 1884. — Laws of New York, 1884, chap- ter 410, section 4, providing that honorably discharged soldiers of the Civil War shall be preferred for appointment in the civil service of the State and of the cities, was not violative of Constitution of New York, article 12, section 1, declaring that no other oath, declaration or test shall be required as a qualification for office than that contained in this Constitution. Nor did it violate Constitution of United States, amendment 14, section 1, prohibiting a State to pass any law abridging the privileges or immunities of citizens, or to deprive any one of life, liberty, or property without due process of law. In re Wortman, 22 Abb. N. C. 137; 2 N. Y. Supp. 324; Report of New York State Civil Service Com- mission, 1888, Vol. 6, p. 209. Scope of Veteran Laws under Former Constitution. — The power of removal is included in the power giverk by the Constitution to the warden of a State prison to appoint keepers, guards and other officers. Such power was not abrogated or restricted by the act of 1887 giving a preference for appointment and employment to honorably discharged Union soldiers. People ex rel. Griffin v. Lathrop, 142 N. Y. 113; 36 N. E. Rep. 805; 58 St. Rep. 633. But has it been abrogated by sec- tion 9 of article V of the Constitution of 1894? Compare People ex rel. McClelland v. Roberts, 148 N. Y. 360, and other cases. Must a Veteran be Appointed if there is one Veteran Among the Three Highest upon the Eligible List. — When three names are certi- fied by the Civil Service Commission to an appointing officer and they are not all names of veterans, must a veteran be chosen? It would seem that he must. The decision in People ex rel. Sears v. Tobey, 153 N. Y. 381, seems to be based upon this construction of the Constitution and statutes. In People ex rel. Balcom v. Mosher, 45 App. Div. 68, Judge Herrick, who wrote the majority opinion, took it for granted that such was the fact. In that case two of the three highest were veterans, and the judge said that if the appointing board in that case were entitled to have more than one name certified to them, then they had a power of selection limited to the relator (who was a veteran) and to the other veteran. When Appointing Officer Cannot be Compelled to Fill a Va- cancy. — Where the head of a department has authority to determine the number of subordinates and clerks he requires, and if a vacancy exists therein, to determine whether he will fill the same or leave it vacant, courts have no power by mandamus to compel him to fill exist- ing position or to request the Civil Service Commission to certify to him the names of eliglbles, even if they are veterans. Per Curiam, in Tregaskis v. Palmer, 9 App. Div. 252. In this case it was said: The Civil Sekvice Law. 115 " The act creating a preference in a veteran's favor (Laws 1884, chap. 312, as amended by Laws 1894, chap. 716), gives preference in ap- pointment and damages where the veteran suffers from an act wrong- fully done, and also a remedy by the existing right of mandamus. But no right to a writ of mandamus existed or at present exists to interfere with the exercise of discretionary power." Compare cases cited under sections 7 and 13. What is a Public Department of the State, City, County or Vil- lageP — Boards of Education. — In the case of People ex rel. Burlin- game v. Hayward, Judge Lambert, 19 App. Div. 46, discussed the scope of the " Veteran Act," chapter 312 of the Laws of 1884, as amended by chapter 821 of the Laws of 1896, and decided that a union free school district of a village, organized, existing and supported by taxa- tion levied upon the taxable inhabitants of the district, which might or might not be coextensive with the corporate limits of the village, by force of the statute, became a district having a distinct classifica- tion in the civil divisions of the State; that it was neither a public department of the State nor of a city, county or village. The care of the school being committed by the Consolidated School Act to the board of education, and the board being in no way subject to the di- rection or control of the village or State authorities in the execution of such duties, but being a separate civil division of the State, was not under the statute, as then phrased, under any legal requirement to prefer a veteran as janitor. It will be noted that Judge Lambert, in the case under considera- tion, decided that school districts were not public departments of the State, but " civil divisions,"— civil divisions of a kind not mentioned In the veteran statute. It may be asked, are they not, in fact, a part of the Department of Public Instruction? In Ridenour v. The Board of Education of Brooklyn, 15 Misc. 418, Judge Gaynor used this lan- guage in speaking of that board: "It is a local school corporation like every board of school district trustees, and is, like every such board, an integral part of the general school system. * * * From Its comprehensive foundation down to the recent codification of our school laws our State system of education has remained a consistent whole." We submit that in view of the intent of the people as mani- fested by constitutional and statutory provisions to give a preference to veterans, the statute should not receive the strict construction given to it by Judge Lambert, and that the boards of education of school districts may properly be considered as pertaining to the Department of Public Instruction, or else that a school board may itself be con- sidered a " public department " of the State. But whether or not a veteran can properly claim a preferential right of appointment as janitor of a public school, it would seem that a veteran incumbent of the position is entitled to the protection of section 21. That section provides for those " holding positions by appointment or employment in the State of New York " or in the several cities, counties, towns or 116 The Civil Seevice Law. villages thereof. The words " In the State of New York " manifestly mean " in the civil service of the State of New York," and paragraphs 3 and 4 of section 2 provide that the term " State service " shall in- clude all offices and positions In the service of the State or any of ita civil divisions except a city. Hence if school districts are in fact civil divisions of the State, separate and distinct from the Department of Public Instruction, they are, nevertheless, within the scope of sec- tion 21, and incumbents of positions except possibly those mentioned in section 8, viz., superintendents, principals and teachers; and the excepted position in section 21, Itself, are entitled to protection under that section. Compare cases cited under sections 2 (3), (4) and (5). The officers of a school district are not county, city, town or village officers, within the meaning of the Constitution. People v. Bennett, 54 Barb. 480. Construction of the Words " In Every Public Department. — What Is meant by the words "in every public department?" In People ex rel. Hall v. Trustees of Saratoga Springs, 35 App. Dlv. 141, it waa said: " Chapter 464, Laws of 1887 (amending chap. 312, Laws 1884), provides that ' in every public department,' Including those of villages, ' honorably discharged Union soldiers * ♦ * shall be preferred for appointment.' " Section 1, chapter 821, Laws of 1896, contains the same words. The Public Health Law (chap. 25 of the general laws* — Laws 1893, chap. 661) provides for the creation of local boards of health, and prescribes their powers and duties. In villages the mem- bers of the board of health, not less than three nor more than seven, must be appointed by the board of trustees of the village. (§§ 20, 21, art. 2 of the act.) * * * It Is obvious that the department will not. In fact, exist until it is constituted by the appointment of the requisite members of the board of health. Being thus constituted, then appointments can be made in the department, and not until then. The statute gives preference in appointments in the department to honorably discharged Union soldiers, not a preference in the appoint- ment of the heads of the department Opinion of Landon, J., in Peo- ple ex rel. Hall v. Board of Trustees of the Village of Saratoga Springs, 35 App. Dlv. 141. Positions independent of every department of the city government; e. g., a health officer of Yonkers, are not affected by chapter 464, Laws 1887, giving a preference to veterans. People ex rel. Balch v. Mayor, 39 St. Rep. 11; 14 N. Y. Supp. 455. " In the Military Service " — What ConstitutesP — Contract sur- geons are not considered as a part of the military forces of the United States during the late war, but where written orders were Issued to a contract surgeon, as acting assistant surgeon of the United States army while he was fulfilling his contract as surgeon with the govern- ment, such person is entitled to the preference given by departmental rule X, of the United States Civil Service Commission, which prefers [* 2 Heydecker's General Laws, 2000.] The Civil Service Law. 117 any person " who served in the military or naval service of the United States in the late War of the Rebellion and was honorably discharged therefrom," and this is true notwithstanding such persons, although amenable to the military jurisdiction when employed with the army in time of war, were mere civiliams, without military rank and status, ■and were not a part of the military establishment, and when not serving with troops before the enemy had no other relations to the military organization or the government than that established by the terms of their contracts. Departmental rule X, here in question, was not limited in its application to persons who served during the Rebel- lion in the army of the United States within the statutory definition of that term given in section 1094 of the Revised Statutes, and clerks and employees on the public buildings in Washington, who were organ- ized into companies under the direction of General Wadsworth, and who served in what was known as the " Quartermaster's Brigade," who were uniformed, armed, equipped, and drilled, and were employed in scouting and other duty, although not regularly enrolled and enlisted in the army of the United States and not honorably discharged from such enlistment, within the technical meaning of that term as used with reference to the release of regularly enlisted soldiers in the army of the United States, were, neverthless, within the proviso of said rule X, and must be held within the language of that proviso " to have served in the military service of the United States in the late War of the Rebellion," and to have been honorably discharged therefrom. (See opinion of Attorney-General in the Matter of Samuel MacPherson, published in Seventh Annual Report of United States Civil Ser- vice Commission, p. 108.) The proviso to rule X is to be construed liberally as a grateful recognition of patriotic service. If it had been the intention of the commissioners, and the President, who approved the proviso, to have limited its operation to regularly appointed of- ficers and regularly enlisted soldiers of the army of the United States, it would have been easy to have so framed its terms, and the conclu- sion would have then been reached which Attorney-General Devens found necessary in his opinion of September 28, 1878 (16 Opin. 147). Opinion of W. H. H. Miller, Attorney-General of United States, dated April 8, 1890; reported in Sixth Annual United States Civil Service Report, 1888-1889, p. 88. It would seem that the New York constitutional provision which, gives the preference to " honorably discharged soldiers and sailors- from the army and navy of the United States," does limit the prefer- ence in this State to regularly appointed officers and regularly enlisted soldiers and sailors. Note that section 20 extends this preference to marines. Is this constitutional, if marines are not included in the term soldiers and sailors as used in the Constitution? Preference in. Employment may Extend to Team. — The preference in employment given to a veteran under Laws of 1887 (chap. 464), in- cluded the employment of his team where a team was necessary. Peo- ple V. Wallace, 55 Hun, 149; 28 St. Rep. 654; 8 N. Y. Supp. 591. 118 The Civil Seevice Law. Veteran Preference Intended only for Subordinate Positions. — It seems that public officers, vested with discretion in the perform- ance of their duties, subject to no direction, but, on the contrary, empowered to appoint clerlis and other subordinates and fix their compensation were not intended to be included in the preference given by the veteran statute of 1894 as amended in 1896, and now embodied in sections 20 and 21. Opinion of Parlier, Ch. J., in People ex rel. Jacobus V. Van Wycli, 157 N. Y. 495. As embodied in section 20, there is now a proviso which limits the preference to positions where qualifications can be tested by examinations. Preference in Case Discharges are Necessary. — Under the act of 1887 (chap. 464), where one of four clerlis was a veteran, he should be discharged last, if the services of all were not needed, and was entitled to a mandamus directing his reinstatement, if discharged be- fore the others. People v. Adams, 53 Hun, 141; s. c, 6 N. Y. Supp. 128. Compare cases under section 21. Under the act of 1887 (chap. 708), a veteran, whose office had been abolished, had no right to displace another officer, to whose duties those of the abolished office had been added. People v. Adams, 51 Hun, 583; s. c, 22 St. Rep. 856; 4 N. Y. Supp. 522. Preference over Those of Higher Standing. — The decision in Peo- ple ex rel. Chin v. Poillon, 16 Abb. N. C. 116, and Same against Travers, to the effect that under the Civil Service Act (Laws 1884, chap. 410, § 6), which provided that discharged soldiers and sailors shall be preferred for appointment to positions in the civil service over others of equal standing, discharged soldiers and sailors have not, be- cause found qualified, an absolute right of preference over all others, but only a preference over others having an equal or lower standing, is superseded by changes in the statute. Veterans not Exempted from Examinations. — As to officers and employees in the classified service of the State and cities, section 9 of article V of the Constitution, which tools effect January 1, 1895, became immediately operative. Orderlies, watchmen, etc., In the capitol at Albany are subject to competitive examinations. The Con- stitution does not exempt veterans from such examinations, but only gives them a preference after they have passed the examinations and have been placed upon the eligible list. All appointments of veterans to these positions, withovrt examinations, since January 1, 1895, are in violation of said section of the Constitution. All acts of the Legis- lature, passed since that date, exempting veterans from examinations in cases where such examinations are practicable, are unconstitu- tional and void. This is true also of the clause for many years in- serted in the annual appropriation bill, exempting orderlies, etc., from civil service examinations. Opinion of John C. Davies, Attorney- General of New York, dated October 12, 1899; reported in New York State Civil Service Commission's Report, 1899, Vol. 17, p. 369. The provision in section 20 contained in the words " Provided their The Civil Seevice Law. 119 -m or tenure is not defined by statute or otherwise, necessarily carries with it the power of removal. (Citing People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; People ex rel. Cline v. Robb, 126 N. Y. 180.) Opinion of Martin, J., in People ex rel. Corrigan v. The Mayor, 149 N. Y. 215. A provision fixing the compensation of a subordinate officer per annum, and the acceptance of the same, is not a contract for a fixed term. Gillespie v. New York, 6 Daly, 286. The power of appointment necessarily carries with it that of re- moval, where the term and tenure of office is not defined. (People v. Fire Commissioners, 73 N. Y. 437.) But this does not prevent the Legislature from restricting the power of removal. The appointing power does not possess the power of removal, where it has no right to fill a vacancy. Bergen v. Powell, 30 Hun, 438; afCd. in 94 N. Y. 591. Appointm.ent of a Successor is per se a Bem.oval of lacumbent. — - It was said by the Court of Appeals in People ex rel. Cline v. Robb (126 N. Y. 182): "With respect to the tenure or duration of a public employment, such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the The Citil Sehticb Law. 183 -discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law." See, also, Ex parte Duncan N. Hennen, 13 Pet. 235, 239 et seq.; People ex rel. Griffin v. Lathrop, 142 N. Y. 113. * * * Where the power to remove is unconditionally intrusted to a board or office, the appointment of a successor to an incumbent effectuates the inten- tion, and no notice of removal is essential to give it validity. (HoUey V. Mayor, 59 N. Y. 166.) Opinion of Spring, J., in People ex rel. Ward V. Drake, 43 App. Div. 325. Power of Removal can be Bestricted only by the Legislature. — The power of removal is incident to the power of appointment, and any law which confers upon the head of a department a power of appointment, ipso facto, conveys a pow^er of removal, as efCectually as if that power were expressly given by the statute. The power of removal Is intrenched in the law. It is created by an act of legisla- tion, and It can only be talien away or modified by similar authority. Opinion of Cox, J., in Woods v. Gary, 25 Wash. Law Rep. 591. See Fourteenth Report of the United States Civil Service Commission, 1896-1897, p. 209. Powex of Bemoval Need not be Conferred in Express Words. — It is not essential to the exercise of the power of removal that it should be conferred either in the Constitution or the statute, for the power to appoint to office or place, where the terms or tenure are not defined, necessarily carries with it the power of removal. (The People ex rel. Sims v. The Board of Fire Commissioners of the City of New York, 73 N. Y. 437.) Opinion of Adams, J., in People ex rel. Travis v. Durston, 3 N. Y. Supp. 522. ITew York Constitutional > Provision as to Tenure of Office — Tenure of Employees. — Section 3 of article 10 of the New York Con- stitution provides: "When the duration of any office is not provided TDy this Constitution it may be declared by law, and if not so de- clared, such office shall be held during the pleasure of the authority making the appointment." The courts hold that independently of legislative enactment the same rule applies to the tenure of persons who are in the public service as employees merely, and not as public officers. (Citing Abrams v. Horton, 18 App. Div. 208.) Opinion of Chase, J., in Connelly v. Commissioners, 32 Misc. 489. No Power of Appointment, No Power of BiemovaJ!. — The com- missioner at the head of a department, under the Greater New York charter (§ 1536), not having the power to appoint clerks in a branch office, has no power to remove them. Opinion of Haight, J., in People ex rel. Tate v. Dalton, 158 N. Y. 204. Where, in a proceeding for a mandamus to require the commis- sioner at the head of a New York city department to reinstate a borough branch office clerk removed by him, the record discloses the fact that the commissioner did establish a branch office in the Thorough, it may be assumed that there was a deputy commissioner in 184 The Civil Seevice Law. charge of the branch office. Opinion of Haight, J., in People ex reL Tate V. Dalton, 158 N. Y. 204. Contracts of Employment.— The fact that in the letter appointing a person to an office, he is informed that his employment will cease on the completion of the work under contract, does not give him a right to remain in the position for that length of time if there is not work enough to keep him and all others similarly hired, in constant employment. These words in the letter of appointment are to be con- sidered merely as words of limitation, and intended to advise the appointee that his tenure is not to be permanent. They do not ex- press a contract that the employment should continue in any event until the completion of the work, whether the applicant's services are needed or not. Opinion of Scott, J., in Matter of Kenny v. Kane, 27 Misc. 680. Where, by the provisions of a city charter, the commissioners of the almshouse of a city may appoint such competent practicing physicians as may be necessary to render surgical and medical services to the city poor, and the duration of the position of physician is neither provided for by Constitution nor declared by law, such a position, whether it has been filled as an office or as an employment under a contract merely, is one that can be terminated by the commissioners at pleasure. (Bell v. City of New York, 46 App. Div. 195, distinguished.) Opinion of Chase, J., in Connelly v. Commissioners, 32 Misc. 489. The aqueduct commissioners of New York city had no power to suspend an inspector of masonry without pay, although they might dismiss him. (Mullen v. New York, 34 St. Rep. 913.) An inspector is, however, bound, in case he has accepted employment upon the con- dition that in case of his suspension his pay shall cease. Emmitt v. New York, 38 St. Rep. 355; s. c, 13 N. Y. Supp. 887; affd. in 128 N. Y. 117; s. c, 38 St. Rep. 907. Compare Phelan v. New York, 38 St. Rep. 805; s. c, 14 N. Y. Supp. 785. Compare cases cited under sections 2 and 25; also paragraph below, entitled, " City Employees under Contract — When Dischargeable." Extent of Legislature's Power over Tenure. — • The Legislature may abridge the term of an office created by it, by express words or may specify an event upon the happening of which it shall end. Where a Legislature has given authority to appoint to an office created by it, it is within its power to remove incumbents without notice. People ex rel. Gere et al. v. Whitlock, 92 N. Y. 191. In Newton v. Board of Commissioners, 100 TJ. S. 548, the Supreme Court of the United States said: " The legislative power of a State, except so far as restrained by Us own Constitution, is at all times absolute with respect to all offices within its reach. It may, at pleasure, create or abolish them, or modify their duties. It may also shorten or lengthen the term of service, and it may increase or diminish the salary or change the mode of compensation. The police power of the States, and that with respect to municipal corporations, and to many other things that might be named, are of the same absolute The Civil Service Law. 185 character." The Federal Supreme Court has thus recognized the power of the State to regulate and control municipal ofiaces, and the terms and conditions upon which they may be held. (Dartmouth College V. Woodward, 4 Wheat. 518; Cooley's Const. Lim. [6th ed.] p. 331.) Quoted in the opinion of Magruder, J., in People ex rel. v. Loeffler, Fourth Annual Report, Civil Service Commission, City of Chicago, 1898, p. 573; 175 111. 585. With reference to the United States Civil Service Act it has been held that when Congress, by law, vests the appointment of inferior officers in the heads of departments it may limit and restrict the power of removal as it deems best for the public interest. The con- stitutional authority in Congress to thus vest the appointment im- plies authority to limit, restrict, and regulate the removal, by such laws as Congress may enact in relation to the officers so appointed. The head of a Federal department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be governed, not only in making ap- pointments but in all that is incidental thereto. (United States v. Perlilns, 116 U. S. 700, reported in the Fourth Report of the United States Civil Service Commission, 1886-1887, p. 540.) In so far as an appointing officer, in New York, derives his power to appoint from the Legislature, the Legislature may restrict the power of removal. Provision, in Chapter 186 of Laws of 1898 Kestricting Right of Removal. — That provision in chapter 186 of the Laws of 1898, which read that " if a person holding a position subject to competitive ex- amination in the civil service of the State or of a city, shall be re- moved or reduced, the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make an explanation," did not contemplate that a formal trial should be had before the head of the department and that the charges should be veri- fied and the witnesses be sworn. It merely required that the reasons for the proposed removal should be communicated to the person who was to be dismissed, and that he should be fairly heard. The ex- planation might be heard before a principal deputy of the department. Opinion of Bartlett, J., in People ex rel. Lawson v. Coler, 40 App. Div. 65. Held, under chapter 186 of Laws of 1898, that deputy tax commis- sioners of the city of New York, who had been transferred to similar positions under the Greater New York charter and who, after the passage of the act mentioned, were classified by the municipal civil service commissioners in the competitive class, cannot subsequently be removed from their positions unless the officer who makes the removal complies with the provision which was embodied in that statute, " that the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the person so removed or reduced shall have an opportunity to make 186 The Civil Sebvice Law. an explanation." Opinion of Giegericli, J., in People ex rel. Miller v. Feitner, and People ex rel. Herriclj; v. Feitner, 27 Misc. 153. Wh.0 Protected by Provision in Chapter 186, Laws of 1898P — Under the provision in Laws of 1898 (chap. 186), which forbade re- movals without stating causes and affording an opportunity for ex- planation, only those in the competitive class were entitled to be heard before they could be ejected from office. (People ex rel. Terry V. Keller, 158 N. Y. 187.) Opinion of Spring, J., in People ex rel. Ward V. Drake, 43 App. Div. 325. Rule as to Bemovals, Adopted by New York City Commission — State Rule 23. — The civil service rule of New York city which reads: " To secure compliance with the provisions of the Civil Service Law prohibiting removals because of political opinions or affiliations, no re- moval of any person in the classified service of the city of New York shall be valid unless and until a statement of the causes of such re- moval shall be filed with the municipal commission, and a copy of the same furnished to the person sought to be removed, and until such person has been afforded an opportimity to present an ex- planation in writing," is invalid being beyond the power of the com- missioners to presci-ibe, in so far as it relates to public officers as dis- tinguished from mere clerks and employees, because the Legislature itself has not fixed this limitation upon the tenure. But the court said: " Whether the rule be good or bad in the case of clerks and em- ployees, we need not (in this case) determine." Opinion of Cullen, J., in People ex rel. Percival v. Cram et al., 104 N. Y. 1C6. Legislature, but not Civil Service Commission may Prescribe that Offices Shall be Hel'd during Good Behavior. — Section 3, article X of the New York Constitution, providing that " When the duration of any office is not provided by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment," does not take away from the Legislature, where the Constitution has fixed no term, the power to prescribe that the term of an office shall be during good behavior and that an officer can be removed only after a hearing or trial, Imt tlw power cannot be delegated iy the Legislature to tJie Ciril Service Commission, nor can the term of an office he prescribed by its regu- lations. Opinion of Cullen, J., in People ex rel. Percival v. Cram et al., 164 N. Y. 166. Public Employees ajs well as Officials are Removable at Pleasure of Superiors Unless Legislature Enacts Otherwise. — Under section 3 of article X of the Constitution of New York that " When the dura- tion of any office is not provided by this Constitution, it may be de- clared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment," a person who is an employee can be removed by his superior without any charges being preferred, without assigning any cause, and without giving notice to any person, except the subordinate himself; because no duration being fixed for such office by the law, the incumbent The Civil Seevicb Law. 187 holds his position only during the superior's pleasure, and when the latter signifies his pleasure that the subordinate's occupancy shall cease, that ends his right to hold it. It, therefore, becomes of no consequence whether the rules of the Civil Service Commission re- stricting removals are complied with or not. Assuming that the rules promulgated by the Civil Service Commission are, in their terms, ap- plicable to persons holding such positions, such rules cannot, in any way, limit or restrain the power conferred by the Constitution. Opinion of Herrick, J., in People ex rel. Ray v. Henry, 47 App. Div. 133. City Employees under Contract — When Dischargeable. — The plaintiff was appointed or employed by a former commissioner of public works of the city of Mount Vernon, pursuant to the provisions of the charter of the city of Mount Vernon (chap. 182, Laws of 1892), to superintend or Inspect certain work which was being done under the general supervision of the commissioner of public works, who was authorized by section 122 " to employ such men as may be required to perform any public work not done by contract and to discharge them, the number to be employed at any one time to be subject to the direction and control of the common council." I'he plaintiff claimed that he had been appointed for the time necessary to complete the work; and when removed by the successor of the person appointing him. he tendered performance, and then brought suit. Held, that the plaintiff accepting employment under the provisions of the law quoted, the former commissioner of public works could not make a contract binding upon the city to employ the plaintiff until the com- pletion of the work, except by the permission of the commissioner who was actually in office; and that the plaintiff being a mere tem- porary employee working for a per diem sum, he could not recover, and that he was not within the provisions of the civil service rules. Opinion of Woodward, J., in Hoggett v. The City of Mount Vemon, 36 App. Div. 374. Employees of Boards of Education. — The board of education of the village of Lyons was held to have power to dismiss a janitor without giving him notice or assigning any cause. Weidman v. Board of Education, 26 St. Rep. 765; s. c, 7 N. Y. Supp. 309. In this case there was no claim of veteran's rights, nor was there any statute giving to the janitor the right to notice and a hearing or of making an explanation, before he could be removed. It was a pure case of the right of removal as incident to the right of appointment, modified only by the question of the effect of an appointment in the form of a contract of employment. Section 137 of the Greater ITew York Charter. — The relator was a veteran, and at the time of the consolidation of New York and Brook- lyn was an employee in the department of city works of the latter city as a street inspector, his duty being the supervision of the street cleaning in a district of the city. On the transfer of employees di- 188 The Civil Sebtice Law. rected by section 127 of the charter, the relator, with all the other street Inspectors of Brooklyn, was assigned to duty by the commis- sioner of street cleaning as section foreman. The relator's salary be- fore the consolidation was $1,200 per annum. The salary of section foreman, prescribed by section 536 of the charter of the Greater New York (Laws 1897, chap. 378) is $1,000 per annum. The commissioner certified the relator's salary to the comptroller for payment at the rate of $1,000 per year. The relator thereupon instituted a man- damus proceeding to enforce the payment to him of salary at the rate of $1,200 per year. The position of street inspector was not con- tinued or provided for eo nomine by the charter of the new city. The position most nearly corresponding to it was that of section foreman. Held, that the provision of section 127 of the charter, that veterans " shall be retained * * * under the same conditions," did not se- cure to a veteran who was thus transferred the salary he had pre- viously received, despite the limitations on salaries prescribed by section 536. The effect of section 127 of the charter was not to in- crease the rights or privileges of the veteran, but to secure to him those already had before the enactment of the charter. (Citing People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495.) Inasmuch as under section 2, title 3, of the charter of the city of Brooklyn (chap. 583, Laws of 1888) the head of the department in which the relator served might have increased or diminished his compensation, the fixity of his compensation was not, at the time of the consolidation, a condition under which the relator held his employment, and he could not recover the salary of $1,200 from the city of New York. Per Curiam, in People ex rel. Schumann v. Ooler, 38 App. Div. 615. Section 537 of the Greater New York Chartei-. — Nothing In the pro- visions of section 537 of the charter of 1897, of New York city, giving the commissioner of street cleaning power to remove members of the street cleaning force in his discretion, authorized the removal of veterans who were retained by virtue of section 127, even if their original employment in the department began before the charter took effect. Where one has been removed on the statements of unsworn witnesses, without notice of the charges, or an opportunity to be heard, he is entitled to be reinstated. People ex rel. Schumann v. McCartney, 34 App. Div. 19; 53 N. Y. Supp. 1047. Section 1536 of the Greater New York Charter. — Employees trans- ferred to departments in the city of New York, pursuant to section 1536, who were not subject to removal without cause, are given the same security of tenure in their new positions which they previously enjoyed. Other subordinates are to continue as before, removable at the pleasure of the appointing power. Opinion of Cullen, J., in People ex rel. Percival v. Cram et al., 164 N. Y. 166. Section 48 of the Consolidation Act.— Section 48 of the Consolida- tion act affecting New York city (chap. 410, Laws 1882), provided that " no regular clerk or head of a bureau shall be removed until he has The Civil Sekvice Law. 189 been informed of the cause of the proposed removal and has been al- lowed an opportunity of making an explanation, and in every case of a removal the true grounds thereof shall be forthwith entered upon the records of the department or board." In the case of People ex rel. McCabe v. Constable, 27 App. Div. 74, the court said: " It is conceded that the relator was a regular clerJi, and that he did not receive the notice as required by the rule of the department, but he was sum- moned and, after being aslied and truthfully stating about the type- written copy which was then on his desk and had not been handed to anybody, his resignation was demanded, and that being refused he was summarily dismissed. Here, therefore, we have neither notice of a Jiearing, nor a hearing, nor notice of a proposed removal." If is to be noted that the statute says that one must be informed of the cause of the proposed removal; that he must be allowed an opportunity to make an explanation. These provisions the court construed as en- titling the party to be removed, to notice and to a hearing. Further- more, it held that section 3 of chapter 275 of the Laws of 1892, which provides as follows: " Said superintendent shall have power to engage in behalf of such department of buildings, and in his discretion to dis- charge, from time to time, such oflBcers and employees thereof, sub- ject to the provisions hereinafter stated * * * and may make from time to time rules and regulations for their government," was not Inconsistent with section 48 of the Consolidation Act, nor did it in any manner repeal or modify the provisions of that section; since there were several grades of persons in the buildings department, divided Tip and designated as heads of bureaus, " officers," regular clerks, " em- ployees " and inspectors, and it was only " officers " and " employees,"— not " regular clerks," that they might remove under section 3 of chap- ter 275 of Laws of 1892. By-laws of a Department, If Inconsistent with Statute, are a ITuUity. — Notwithstanding the by-laws of a department declare that all appointments and removals are subject to the pleasure of the board, If an incumbent is a " regular clerk," the by-laws of the department must necessarily give way to the provision in the Consolidation Act which gives " regular clerks " the right to a hearing. Opinion of O'Brien, J., in Van Valkenburgh v. The Mayor, 49 App. Div. 208. " Begular Clerks " and " Heads of Bureaus," Wlio areP— The expression " regular clerk " has been construed in the following cases, among others: People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; People ex rel. Emerick v. Board of Fire Commissioners, 86 Id. 149; People ex rel. McCullough v. Cram, 72 St. Eep. 266; People ex rel. Archbold v. Health Department, 24 Week. Dig. 197; People ex rel. Warschauer v. Dalton, 34 App. Div. 302. An Inspector of water supply to shipping In the department of water Bupply of the city of New York is not a " regular clerk," within the meaning of section 1543 of the Greater New York charter, Laws 1897, chap. 378,— section 48 of the Consolidation Act, which provides that no( 190 The Civil Seevice Law. regular clerk shall be removed until he has been allowed an oppor- tunity of making an explanation. Opinion of Parker, Ch. J., in People ex rel. Warschauer v. Dalton, 159 N. Y. 235. The secretary of the dock department of the city of New Tork Is not a regular clerk nor a head of bureau within the meaning of sec- tion 48 of the Consolidation Act, which restricts the right of removal from office. People v. Koch, 2 St. Rep. 110; 102 N. Y. 650. /* seems that under the laws in force in 1896, the steward of th& almshouse of the city of New York, who was not a veteran, could be removed at the pleasure of the commissioners of charities. Heard v. Commissioners of Charities, 51 N. Y. Supp. 375. It was held that the registrar of permits in the city of New York could be removed at the pleasure of the mayor without the notice required by section 48 of the Consolidation Act. People v. Grace, 22 Week. Dig. 150. An assistant examiner in the office of the commissioners of accounts of the Greater New York, who has been transferred from a similar position in the former city of New York, and whose status as a " regu- lar clerk " is established by the verdict of a jury upon a trial of issues under a writ of alternative mandamus, could not be summarily re- moved on March 19, 1898, as section 1543 of the Greater New York charter forbade it. And it appearing that he was really removed in order to make a place for another and because of his political affilia- tions, he was entitled to be summarily reinstated because his removal was also in violation of section 124 of the New York charter. Opinion of Scott, J., in People ex rel. Boyd v. Hertle, 28 Misc. 37. The superintendent of telegraphs in the city of New York is neither the head of a bureau nor a regular clerk within the meaning of charter of 1873; therefore, he is removable, at will, by the fire commissioners. People v. Fire Commissioners, 23 Hun, 317; s. c, 86 N. Y. 149. The superintendent of street improvements in New York city Is the head of a bureau, and can be discharged only upon notice of charges and opportunity to be heard. People ex rel. Dean v. Brookfleld, 1 App. Div. 68; 37 N. Y. Supp. 107; 72 St. Rep. 153. The health department of New York city may reduce the number of inspectors when rendered necessary by the insufficiency of appro- priation. A sanitary inspector of New York city is not a head of a bureau nor a regular clerk with a right to notice and hearing before removal. People v. Health Department, 24 Week. Dig. 197. A clerk of the board of aldermen of New York city, appointed by the city clerk, notwithstanding he is in the unclassified service, being a legislative employee, is a " regular clerk " within the meaning of section 1543 of the Greater New York charter, and the protection of that charter extends to him. Opinion of Patterson, J., in People ex rel. Martin v. Scully, 56 App. Div. 302. Section 95 of Greater New York Charter.— The authority to re- move officers contained In the charter of Greater New York (section 95), The Civil Seevicb Law. 191 refers to the first mayor of the consolidated cities, as well as to ap- pointees of the first mayor, who may be removed by his successor in office. This section does confer upon the mayor of the city of New York the power to remove the officers therein indicated during the- first six months of his term. (Citing People ex rel. Quinn v. Feitner, 30 App. Dlv. 241; affd. on opinion below, 156 N. Y. 694; People ex rel. John W. Jacobus v. Robert A. Van Wyck, as Mayor of New York City, 157 N. Y. 495.) Opinion of Bartlett, J., in People ex rel. Baird V. Nixon et al., 158 N. Y. 221. Section. 134 of the Greater New York Charter. — The position of as- sistant examiner in the office of the commissioners of accounts in the city of New York is included in regulation IV of the civil service rules of that city, adopted pursuant to section 123 of the charter, which provides that " Schedule F shall include stenographers, type- writers, and all classified positions not included in the foregoing^ schedules except laborers or day workmen," and is consequently within the protection of section 124 of that act, providing that no re- moval from office or employment within the scope of rules estab- lished as provided in that section shall be affected or influenced by political or religious opinions or affiliations. Opinion of Van Brunt, P. J., in People ex rel. Boyd v. Hertle, 46 App. Div. 505. Second Class Cities - — Power to Deteimine ITum.ber of Mem.bers of Police Force. — The provision (Laws 1898, chap. 182, § 177) author- izing the common council of a city of the second class to "determine" the number of members of its police department, does not empower the council to abolish the position of station-house keeper, established by a prior statute and not affected by subsequent legislation, and, therefore, an incumbent, summarily discharged, after the position was attempted to be abolished, is entitled to reinstatement by man- damus. People ex rel. Dunn v. Ham, 32 Misc. 517. Ifotice of Causes of Intended Removal — Must be Specific. — A notice of removal to a regular clerk in a city department of New York must inform him of the cause. A general charge of incom- petency, without specifying the particulars, is not sufficient. People V. Starks, 33 Hun, 384. ITotice of Causes — How Delivered. — It is not necessary that the notice to the subordinate be in writing. People v. Campbell, 18 J. & S. 82. The Bight to lIVEake an Explanation, Not the Bdght to a Formal Trial. — Upon certiorari to review the removal of a clerk of markets, it was Mid, that a formal trial was not necessary; it being sufficient, if the comptroller conveyed the charge to relator orally and received his explanation. People v. Myers, 32 St. Rep. 435; s. c, 10 N. Y. Supp, 815. Compare, however. People ex rel. Munday v. Fire Commission- ers, 72 N. Y. 445. That provision in chapter 186 of the Laws of 1898, which read that " if a person holding a position subject to competitive examination 193 The Citil Seetice Law. in the civil service of the State or of a city, shall be removed or reduced, the reasons therefor shall be stated in writing and filed with the head of the department or other appointing officer, and the per- son so removed or reduced shall have an opportunity to make an explanation," did not contemplate that a formal trial should be had before the head of the department and that the charges should be veri- fied and the witnesses be sworn. It merely required that the reasons lor the proposed removal should be communicated to the person who was to be dismissed, and that he should be fairly heard. The ex- planation might be heard before a principal deputy of the department. Opinion of Bartlett, J., in People ex rel. Lawson v. Coler, 40 App. Div. 65. The Bight to Make an Explanation — A Substantial Proceeding. — Section 1543 of the Greater New York charter confers power upon the " heads of all departments * * * to appoint and remove all * * * officers, employees and subordinates in their respective de- partments except as herein otherwise specially provided, without refer- ence to the tenure of office of any existing appointee; * * * and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board. In case of re- moval, a statement showing the reason therefor, shall be filed in the department." This provision, so far as quoted, appeared in section 28 of chapter 335 of the Laws of 1873, in section.48 of the Oonsolidatiooi Act of 1882 (chap. 410), as well as in section 1543. In People ex rel. Munday v. Fire eommlssioners, 72 N. Y. 445, the section of the act of 1873 was under consideration in 1878. The lan- guage of Judge Allen, who wrote the opinion of the court, was: "It is also required that in every case of removal, the true grounds thereof shall be forthwith entered upon the records of the department, and a statement showing the reason thereof shall be filed in the department. We cannot agree with the counsel of the appellants that this restric- tion is ' shadowy and unsubstantial,' and this expression of the legis- lative will inoperative and ineffectual. It was extended as a sub- stantial limitation of the general power of removal, conferred by the same section upon the several departments of the city government, and to secure the continuance in office of the persons named until a reasonable cause, other than the pleasure of the heads of the depart- ments, or a change in the political character of the majority, should exist for their removal. The intent of the provision was to continue in the subordinate but important positions of the city government, those who had proved themselves faithful and trustworthy, as well asi competent to discharge the duties of their stations. The provisioni may be imperfect in prescribing the details of the proceedings for a removal, but it is capable of execution in a way to give full effect to the intent of the Legislature, secure the officers named against re- moval without cause, without in any way detracting from the neces- sary powers vested in the heads of the departments, and who are re- The Civil Seeticb Law. 193 sponsible for their due administration, if tliose having the execution of It are disposed in good faith to respect the statute and the rights of the officers named in the restrictive clause." We have thus an authoritative, declaration that the restriction upon removals in section 1S43 of the charter is not " shadovry and unsub- stantial," but a substantive limitation of the power of removal in the event of a change in the political character of the majority. This was announced before the Civil Service Act of 1883 and before the em- bodiment in the Constitution of the principle of the Civil Service Law. It is a curious fact that while the section of the State Constitution (art. 5, § 9) provides for appointments and promotions in the civil service, it does not mention removals. Opinion of Goodrich, P. J., in People ex rel. Percival v. Cram, 50 App. Div. 380, reversed, with- -out overruling this point. See, however, upon the question as to what is the exact nature of this proceeding, the recent decision of the court of Appeals in People ex rel. Kennedy v. Brady, cited below. Causes to Justify Removal must be Substantial.— Before the re- cent decision of the Court of Appeals in People ex rel. Kennedy v. Brady, it had been laid down by a long line of authorities that to Justify a removal, under statutes requiring notice of the causes to be given to the party to be removed and giving him an opportunity for explanation, the causes must be substantial; and that if the ex- planation was reasonable it must be accepted. The following ab- stracts from opinions are in point: The cause assigned for removal In this class of cases must be substantial and not shadowy, and the explanation must be received and acted upon in good faith and not arbitrarily. " If the cause assigned is not substantial, the removal is Invalid." " To be substantial the cause assigned must be some dere- liction on the part of the subordinate, or neglect of duty, or something affecting his character or fitness for the position." (Citing People ex rel. Mitchel v. La Grange, 2 App. Div. 444; affd., 151 N. Y. 664.) Opinion of Hatch, J., in People ex rel. Kennedy v. Brady, 53 App. Div. 279; reversed by Court of Appeals, 166 N. Y. 44. To authorize the removal of the head of a bureau, the cause must be a substantial one, Involving some dereliction or neglect of duty on his part, and the charges served must clearly state its nature and the information upon which it was made. He should also be given an opportunity for explanation, which should be received and acted upon in good faith. People ex rel. Mitchel v. La Grange, 2 App. Div. 444; 37 N. Y. Supp. 991; 73 St. Rep. 533. A removal of a registrar of a board of health on the ground of violation of its rules in causing the mall of the board to be delivered at his house instead of at the office, cannot be sustained, where his Instructions in regard thereto were not definite and it does not appear that he directed such delivery, but that the mall carrier, upon finding the office closed, left the mail at his house without orders. People ex 13 194 The Civil Seevice Law. rel. Lamb v. Board of Health of Long Island City, 76 Hun, 5; 59 St. Rep. 160; 27 N. T. Supp. 660. Under section 28 of the act of 1873 the power of removal cannot be exercised except for some neglect of duty, incapacity, or unfitness for the position. If the subordinate give a reasonable explanation or disprove the charge, he cannot be removed. The charges and specifica- tions need not be drawn with formal exactness, nor is he entitled to a regular trial. People v. Thompson, 94 N. Y. 451; afEg. s. c, 26 Hun, 28; People v. Grant, 12 Daly, 294. A regular clerk in the employ of the department of buildings in the city of New York, on the 4th of October, 1899, obtained a leave of absence for one week on account of the serious illness of his wife. On the 12th of October, the day the leave expired, Instead of report- ing for duty he started for California with his wife, because her physician said it was absolutely necessary for her to do so to pre- serve her health. Having no opportunity to apply for further leave of absence, he sent a friend to the commission with a written request to be granted a further leave of absence of four months without pay, to be given him for the purpose of enabling him to attend his wife while she was so seriously ill. On the 1st of November this regular clerk not having reported for duty, he was suspended by the commissioner pending charges. The commissioner being unable to serve notice of suspension upon him personally, by reason of his having left the State, sent the same to him by registered mail. The same was received December 20, 1899, but no response was made to the same. In February, 1900, the relator (the regular clerk) re- turned to the city but did not report for duty and gave no intimation to the commissioner that he had returned. In June, 1900, notice was served upon him by the commissioner to the effect that the commis- sioner proposed to remove him from his position because of his ab- sence without first obtaining the permission of the commissioner of building, and because of his violation of the rules and regulations governing employees in that department in that he had failed to notify the chief clerk of his change of residence as required by rule XXII of the general rules. It was further said that an opportunity to make a further statement in writing in relation to the matter would be allowed him on June 13, 1900. On that day he submitted an ex- planation in writing, and subsequently appeared before the commis- sioner and asked to introduce testimony to establish the truth of the facts set out in his explanation. That was refused and the commis- sioner, not being satisfied with his explanation, removed him. The clerk sued out a writ of certiorari to procure a review of the decision. The court held that the relator was not entitled to give any evidence whatever to establish the truth of the explanation which he had made. All that he was entitled to have was an opportunity to explain and that was given him, and when he had offered his explanation if the charges were material and serious enough to warrant his removal unless they were suflSciently explained, it was for the commissioner to The Citil Service Law. 195 say whether the excuses were satisfactory, and his conclusion could not be reviewed by any court. Citing People ex rel. Keech v. Thomp- son, 94 N. Y. 451, and distinguishing People ex rel. Mitchel v. La Grange, 2 App. Div. 244. With reference to the last case, the court said that in the La Grange case the removal was not proper, because the charges there alleged were not of any dereliction or neglect of duty, or anything which afEected in any way the character or fitness of the relator; and that in the I^a Grange case it was said that if the explanation given was such as to satisfy a fair-minded man, and if it admitted of no reasonable inference or dereliction or incompetency, it should be given its due effect in acquitting the accused. But it was said in the La Grange case that, in addition to that, the removal might rest upon further facts within the personal linowledge of the commissioner or upon Information received by him from others. It was further said, in the case of People ex rel. Hart v. Brady, that the sufficiency of the explanation given by the relator and as to whether the explanation was satisfactory or not, was not to be deter- mined solely by the exigencies of the situation in which the relator found himself with respect to his wife's illness, but to the standpoint of the commissioner also, who was bound to consider the requirements of the public service; and that even if every word of the explanation were true, it did not necessarily operate to excuse the relator of the charge which was made against him, and that, therefore, the writ of certiorari should be dismissed. Opinion of Rumsey, J., in People ex rel. Hart v. Brady, 58 App. Div. 219. Beversal of Foregoing so far as They Hold that a Seasonable Explanation Hust be Accepted — The Superior is the Judge of the Beasonableness of the Explanation — The Bight to Make an Expla- nation gives One no Bight to Produce Testimony Tending to Sis- prove the Charges. — In the recent case of The People ex rel. Kennedy V. Brady, commissioner of buildings for the boroughs of Manhattan and The Bronx, the Court of Appeals has exhaustively considered the nature and extent of the protection from removal given by chapter 186 of the Laws of 1898 since then repealed. That statute provided that if a person holding a position subject to competitive examination in the civil service of the State or of a city, should be removed or re- duced, the reasons therefor should be stated In writing and filed' with the head of the department or other presiding officer, and the person so removed or reduced should have an opportunity to make an explana- tion. A subordinate in the department of public buildings had been removed, all of the formalities of this statute having been complied with. Certiorari was brought to procure a review and reversal of the determination of the superintendent of the department of public build- ings. The Supreme Court reversed the determination and reinstated the relator upon the ground that his explanation was sufficient, and assuming that his statement was correct, the removal was unauthor- ized. The Court of Appeals afterwards reversed this decision, and In doing so clearly defined the procedure in such cases and the extent 196 The Civil Seetice Law. of the rights of a removed party. We quote from the opinion in ex- tenso since the question is a most important one, because, although the statute in question has been repealed, charter provisions of similar import exist in various cities: " The sole question, therefore, is vrhether the official act of the defendant in removing the relator was a judicial act in nature or character. Unless it was, the court below had no power to review it upon certiorari. The relator was entitled to an opportunity to make an explanation and this he had. He was enti- tled to have the reasons for his removal expressed in writing and filed in the department, and this provision of the statute was com- plied with. He was not entitled to be sworn or to introduce witnesses with respect to the truth or merits of the reasons which were assigned for his removal. He was not entitled to a trial or a judicial hearing, and, manifestly, there was no trial or judicial hearing before the commissioner. The statute simply provides that in such cases re- movals, when made, shall be accompanied with certain formalities, and if these formalities are not complied with the party removed has a right to complain, and the action of the commissioner in such cases may be corrected, since there is no jurisdiction, and, conse- quently, it is an error of law to make the removal without complying with the statute. But there Is no statute and no rule of law that gives the right to the relator to review the merits of the case upon the facts, since the power of removal is conferred upon the commis- sioner In the broadest terms, subject to no limitation whatever, ex- cept that embodied in the statute which requires the reasons to be stated in writing and filed, and an opportunity for an explanation given. That is the law on the subject which was laid down by this court In the case of People ex rel. Keech v. Thompson, 94 N. Y. 451. It was held In that case that where a statement of charges with a specification of facts furnishing sufficient cause for removal and suffi- ciently distinct to apprise the subordinate of the grounds upon which the charges are based, with notice of the time and place when an opportunity for an explanation will be given, ij served upon him, and where, at the time and place specified, an opportunity for explanation is given, the requirements of the statute are met. It is not requisite that the charges and specifications should be drawn with the formal exactness of pleadings in a court of justice, nor is the subordinate entitled to a regular trial. The head of the department, if the ex- planations are not satisfactory to him, may, in his discretion, remove without calling witnesses to substantiate the charges or allowing tes- timony on the part of the subordinate. He may exercise the power of removal upon facts within his own knowledge or based upon in- formation received from others. The reasons assigned for the re- moval must appear, upon their face, to justify the action; In other words, they must be substantial and not frivolous, but when they appear to be sufficient to justify the determination, the courts have no power to interfere on the ground that the reason, though good in themselves, had no existence as matter of fact, or that the explanation The Civil Service Law. 197 given by the subordinate sliould have satisfied the head of the depart- ment. In other words, the sufficiency of the relator's explanation was a question for the commissioner alone to determine, and the courts have no power to interfere with his discretion in that regard. (People ex rel. IMunday v. Board of Fire Commissioners, 72 N. Y. 445; People ex rel. Sims v. Board of Fire Commissioners, 73 N. Y. 440; People ex rel. Keech v. Thompson, supra.) It was said in the case last cited that ' If the commissioner was to be constituted a court for the pur- pose of trying every charge which might properly be preferred for violation of duty, it would tend to very much embarrass the action of that officer and also interfere with the interest of the public. If the trial was to be had, the law, no doubt, would have so provided and not for an explanation merely. In cases where the Legislature Intended that the removal should not be made without cause proven, provision is made for the preferring of charges and an examination of the same. This rule prevails as to members of the police force and also as to firemen.' It would seem to be quite clear, therefore, that the action of the defendant in removing the relator was not a judicial proceeding in any legal sense, and that the writ of certiorari does not lie to review his action except, possibly, in cases where he has not complied with the law in filing written reasons and awarding the subordinate an opportunity for explanation. No case has been cited in this court where it was Tield that, after compliance with the formalities of the statute, the courts could institute an inquiry with respect to the truth of the charges or the existence, as matter of fact, of the grounds stated for the removal. The order of the Appellate Division should be reversed, with costs, and the writ quashed." Opinion of O'Brien, J., in People ex rel. Kennedy v. Brady, 166 N. Y. 44. A Bemoval " for the Good of the Public Service " is not Based on. Sufficient Grounds. — Civil service rule II of United States Commis- sion, provides that " no removal shall be made from any position sub- ject to competitive examination, except for just cause and upon wi-it- ten charges filed with the head of the department or other appointing officer and of which the accused shall have full notice and an op- portunity to make defense." A statement that a removal is " for the good of the public service," is too general, vague, and indefinite to authorize the removal of an officer under that rule. By the very terms and provisions of the rule, the party about to be removed has to be confronted with the specific charges that are made against hiin and to have full notice and an opportunity to make defense. Butler V. White, 83 Fed. Rep. 578; revd., 171 U. S. 366, upon another point. Although the charter provisions in New York city are less specific in their statements, it is doubtless true that, under them, a " removal for the good of the service " is invalid. It is too vague to enable one to explain. A General Allegation of Incompetency — Insufficient.— The board of commissioners of department of docks served upon a clerk a copy cf resolution which stated that they deemed " him incompetent for 198 The Civil Seevice Law. the creditable performance of duties assigned to and required of him." Meld, that the notice did not assign any cause to justify his removal; that it was not specific, as it did not state the nature of his incom- petency. People ex rel. Dieliels v. Starks et al., 33 Hun, 384. Sufficiency of Causes Given for Bemovals in Adjudicated Cases — Errors in Accounts. — Where it appeared that the inspector in the bureau for the collection of city revenues and markets was dismissed because he was unable to balance his account-book and offered no explanation of his inability in this respect, although given ample op- portunity to do so, and where it also appeared that he could not add correctly his collections for part of a month, held, upon certiorari, that the action of the comptroller in dismissing him should be sustained, notwithstanding the inspector had been appointed to his position as the result of a competitive examination. Opinion of Bartlett, J., In People ex rel. Lawson v. Coler, 40 App. Div. 65. Failure to Give Superior Information. — The failure loyally to re- spond to a request fully and candidly from a superior for information, or to furnish full and accurate information, when required by him, is a substantial cause for removal. Opinion of Bartlett, J., in People ex rel. Veiller v. Brady, 43 App. Div. 60. Want of Skill. — A municipal oflScer may be removed for want of skill and ability, or for an Insufficient and slack control of his sub- ordinates; but he is not responsible for the inefficiency or incapacity of assistants, whom he had no power to appoint. People v. Campbell, 82 N. Y. 247. Superior Capacity of Another.^ If an officer is only removable for cause, it is not sufficient ground for removal, that, in the opinion of the appointing power, the duties of the office can be more efficiently performed by another. People v. Board of Fire Commissioners, 12 Hun, 500; S. C, 72 N. Y. 445. Misbehavior in Another Office. — An officer who is removable for Incapacity, misbehavior, or neglect of duty, cannot be removed for misbehavior in a different office previously held by him. People v. Weygant, 14 Hun, 546. Insolence. — A member of the police force of the city of New York was tried upon two charges: One was, that when he was being tried for the other, and while his superior officer was testifying, he inter- rupted the proceeding by saying to his superior officer, " You lie." Upon certiorari proceedings instituted by him to procure a reversal of the finding of guilty, the relator admitted that he was guilty of the charge, but averred that the witness against him swore falsely; that his temper became then uncontrollable, and he told the witness he lied, and in so saying he told the truth. Eeld, this was a sufficient ground for removal. Opinion of McLaughlin, J., in People ex rel. Donnelly V. Moss, 50 App. Div. 308. Conduct Trnbecoming an Officer. — When the charge against a policeman Is " conduct unbecoming an officer," the board of police The Civil Sebvice Law. 199 cannot remove him on the ground that he was originally ineligible. People V. Board of Police, 72 K. T. 415; revg. S. C, 5 Hun, 457. Failure to Wear Tlnif orm.— A messenger in the department of pub- lic buildings in New York city was removed. The first charge was: ^' 1. Disobedience of orders and violation of the rules and regulations governing the employees of the department of buildings, in that of reporting for duty without wearing the full uniform, as required by the rules." There was a department rule requiring messengers to wear Insignia on their hats. The proof showed that the dereliction charged in this case consisted of being seen by the chief messenger, without this badge, on the morning of June 10, 1898, in the building occupied by the department. He spoke to the subordinate about it, but did not reprimand him and said nothing more to him about it. It was perfectly apparent that the chief did not regard the breach of discipline as at all serious. It happened on the 10th day of June, 1898. No charge was preferred until March 7, 1899. The subordinate was not taken to task for it at the time; his superior simply testified that he called his attention to it, and the charge was not mentioned as a ground for relator's suspension. Held, this charge was not substan- tial, nor was it supported by the proof offered to establish it so as to warrant the removal of relator therefor. The second charge was: "2. Disobedience of orders and violation of the rules and regulations governing the employees of the depart- ment of buildings, in that of failing to obey orders to serve notice upon Frederick C. Burlingame on the morning of February 17, 1899." It appeared that one Burlingame was an inspector of the department, and that a proceeding had been instituted for his removal, or attempted to be, and prior to the 15th of February an attempt had been made by some other messenger to serve notice upon him, but without suc- cess. On the 15th of that month the notice was given to the relator to serve. It was, as he testified, and as was undisputed, at a time of a very severe storm, designated by the witness as " the big storm." He was instructed to serve the notice personally on Bur- lingame, and it appeared that he went to his house through the storm on that morning, and, not finding him at home, and being informed by his wife where he was, he returned there and looked for him, but without success. He returned to the house in the evening, reach- ing there with difficulty on account of the storm; found Burlingame not at home, and waited until turned out of the house at about ten o'clock. He reported the facts to his superiors and was instructed to serve the notice personally that afternoon, if possible, if not, the next morning. He made another trip to the house that night in the rain, reaching there about 7:15, without any dinner, but again found Burlingame absent, and was informed by his wife that she could not tell what time he would be in; that there was no use in his waiting or coming up there again; that he could not see him. Under these circumstances, believing that he would be unable to make a service at the house, he failed to go there on the morning of the 17th, as ho 200 The Civil Seevice Law. had been told to do, and reported his failure to the office. Held, that under these circumstances, the proof failed to show anything like a culpable neglect of duty, and admitted of no reasonable inference of dereliction or incompetency, but, on the contrary, showed a persistent and painstaking effort to perform his duty. The explanation given by the relator as to his failure to obey the instructions he had re- ceived ought to have satisfied any man who was disposed to act upon it fairly and reasonably. (Citing People ex rel. Deloughry v. Welles, 5 App. Div. 523, 526.) Opinion of Hatch, J., in People ex rel. Kennedy v. Brady, 53 App. Div. 279. It will be remembered that this decision was reversed in 166 N. Y. 44, and so far as the opinion lays down the doctrine that, upon certiorari the court can review the question of the reasonableness and sufficiency of the explanation, it does not cor- rectly state the law. Notwithstanding Appointing Officer is Final and Sole Judge of the Reasonableness and Sufficiency of the ExplanatioiL, Yet " An Opportunity to ISIake an Explanation " Must be Given. — Although un- der the provision of Laws of 1898 (chap. 186), one may not be entitled to a regular trial as are police officers and firemen, or as are veterans under section 21 of the Civil Service Law, yet he can only be removed for cause, after an opportunity of making an explanation. The cause (People ex rel. Mitchell v. La Grange, 2 App. Div. 444; afiCd., 151 N. Y. 664) must be substantial, pointing to some dereliction or neglect of duty, or affecting his character or fitness for the position. Opinion of Barrett, J., in People ex rel. Veiller v. Brady, 43 App. Div. 60; Peo- ple ex rel. Kennedy v. Brady, 166 N. Y. 44. No Notice Bequired where Bemoval is not for Personal TTnfituees. — Under the provision of the Consolidation Act (Laws 1882, chap. 410, f 48), that " no regular clerk or head of a bureau shall be removed un- til he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation," it has been held that the statute has no application to a removal for a cause not implying personal unfitness, or where the need for the services ceased, or the appropriation therefor was expended (People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437; People ex rel. Keech v. Thomp- son, 26 Hun, 28; affd., 94 N. Y. 451), yet the provision has been held to apply strictly to cases where there is alleged some dereliction of duty, or where the removal is really made in order that some one else may be appointed. (People ex rel. Munday v. Fire Commissioners, 72 N. Y. 445.) Opinion of O'Brien, J., in Van Valkenburgh v. The Mayor, 49 App. Div. 208. Nor when Office is Abolished. — The Incumbent of an office which Is abolished cannot assert that he has been deprived of the benefit of a hearing secured to him by protective civil service laws, when his dismissal simply follows the abolition of his office, in good faith; under such circumstances, the statute is held to have no application. The test adopted is simply whether the dismissal was because of the fact that the services of the employee were no longer needed, as distin- The Civil Seetice Law. 301 guislied from a case of removal to make way for another. (Citing- Phillips V. Mayor, 88 N. Y. 245; People ex rel. Corrigan v. Mayor, 149 id. 215; People ex rel. Traphagen v. King, 13 App. Div. 400.) Opinion of Giegerich, J., in Vincent v. Oram; O'Rourke v. Oram;. Marren v. Cram, 27 Misc. 158. In accordance with this principle, held, that attendants upon recreation piers in the city of New Yorli, which piers are open only from May to November, may be discharge after the closing of the piers without notice or a hearing. The foregoing decisions should tie read in connection vrith rule XIII of the State Civil Service Commission. Hor when Lack of Work or Money Beqiiires Suspension of Service. — A regular clerk whose services are no longer needed may be re- moved by a head of department without trial, hearing, or notice; the provision of the charter, declaring that no regular clerk shall be re- moved except on charges and allowed an opportunity of explanation, does not apply to such cases. Langdon v. Mayor, 92 N. Y. 427. Where a removal has been made for reasons of economy and be- cause of lack of work, and not because of some neglect of duty or incapacity, or some other cause affecting fitness for the place, the provision in the statute of 1898 (chap. 186), requiring an opportunity to make an explanation before removal does not apply. (Citing Leth- brldge v. Mayor, 133 N. Y. 237; Langdon v. Mayor, 92 id. 427; Phillips V. Mayor, 88 id. 245; also Vipcent v. Cram, 27 Misc. 158; Kenny v. Kane, 27 id. 680.) Opinion of Chester, J., in People ex rel. Stone v. Dalton, 32 Misc. 109. Under chapter 186 of the Laws of 1898, section 3 (amending chap. 354, Laws 1883 § 13), which prescribed that " if a person holding a position subject to competitive examination in the civil service of the State or of a city shall be removed or reduced, the reasons there- for shall be stated in writing and filed with the head of the depart- ment or other appointing oflicer, and the person so removed or reduced shall have an opportunity to make an explanation;" it is not neces- sary to give a hearing or to afford an opportunity for an explanation where a, position is legally abolished in good faith for purposes of economy; nor in such cases is it even necessary to a valid removal that the reasons therefor shall be stated in writing and filed with the head of the department. Opinion of Bartlett, J., in People ex reL McCarthy v. Shea, 51 App. Div. 227. Where it appears that a city employee Is discharged, not by reason of any alleged dereliction of diity or personal unfitness such as might have been explained or denied if he had had an opportunity to explain, but only for the reason that in the opinion of his superior his services are not required, held, that the provisions of the act of 1898, relative to the filing of written reasons before the removal of a person in the coiripetitive class apd the granting to him of an opportunity to make an explanation, did riot apply. To give an employee an opportunity to. make an explanation when there is nothing to explain would be an Idle ceremony. Opinion of Scott, J.; in Kenny v. Kane, 27 Misc. 680. 203 The Civil Seevice Law. Department clerks, without notice or hearing, may be removed on the ground that a reduction of the appropriation has rendered neces- sary a reduction of expenses. People v. Commissioners of Public Parks, 60 How. Pr. 130. Nor when Beduction of Force Becomes Proper. — A department clerk may be removed for the purpose of reducing expenses, even though the entire appropriation is not exhausted, if his services are not required. People v. French, 25 Hun, 111; S. C, 10 Abb. N. C. 418; Langdon v. New York, 27 Hun, 288; S. C, 63 How. Pr. 134; 92 N. Y. 427. Discretion of Superior Officers as to Propriety of Beduction of Force not Reviewable by the Courts. — Where, by the city charter, commissioners have power to suspend subordinates when the state of the funds of the department or the public interests require, their de- cision involves the exercise of judgment and discretion, and is not subject to restraint by the courts. People v. Police Commissioners of Long Island City, 20 Week. Dig. 552. While it is within the power of the head of a department to abolish in good faith a position which is no longer needed, thus depriving the incumbent of employment, yet an order dismissing the incumbent from the position " for the good of the service," was insufficient to accom- plish this purpose, while section 3 of chapter 186 of Laws of 1898 was in force. The position itself must have been abolished in good faith, else the incumbent could not legally have been deprivea of his em- ployment, except in the manner pointed out by the statute. (Citing Matter of Breckenridge, 160 N. Y. 103; People ex rel. Corrigan v. The Mayor, 149 id. 215; and Matter of Kelly, 42 App. Dlv. 283.) Opinion of Woodward, J., in People ex rel. Glldersleeve v. Dalton, 44 App. Dlv. 556. The question of the good faith of the abolition of the posi- tion or the reduction of the force is reviewable by the courts upon proceedings by alternative mandamus to compel re-instatement. See cases cited under section 21. What is a KemovalP — Bevocation. of Assignment. — A relocation of an assignment to duty may amount to a removal. Butler v. White, 83 Fed. Rep. 578; revd., 171 U. S. 366 upon other grounds. Compare cases cited under section 21. Suspension.— Whether a notice of suspension was in reality a sus- pension or a discharge, and as to the understanding of the parties at the time, is properly a question for the jury. Fox v. Mayor, 11 Misc. 304; 32 N. Y. Supp. 257; 65 St. Rep. 441. Under the former laws of the State as to excise, held, an Inspector of excise could not be suspended by the commissioners without pay; the power to suspend could not be implied from the mere grant of the power to remove or expel. An action to recover salary due for the time during which the officer was unlawfully suspended would lie. (Gregory v. New York, 113 N. Y. 416; s. c, 22 St. Rep. 703; afCg. s. c, 11 id. 506; 33 Hun, 451.) The same was held as to a clerk in the de- partment of public works. (Lethbridge v. New York, 39 St. Rep. 385.) The Civil Seevice Law. 303 Retirement upon Pension. — Under the act of 1885 (chap. 364) for the retirement of policemen in New Yorli city on their reaching the age of sixty years, there was no discretion vested in the board; it was their duty, as each member reached the age of sixty years, to talie the action prescribed by the statute. People v. French, 13 St. Rep. 584. Demand for Resignation. — A demand for the resignation of a sub- ordinate, made in consequence of charges of Intoxication and insubordi- nation, is equivalent to a discharge, and its effect is not impaired by a subsequent formal dismissal from the service. Ryan v. Mayor, 91 Hun, 470; 36 N. Y. Supp. 315; 70 St. Rep. 778. Presumption of Resignation. — A member of the police force of Buffalo was called before the board and was examined by a doctor in the presence of the superintendent and members of the board, with reference to the condition of his clothing and person. He was found to be suffering from some slsin disease, which was especially apparent upon his head and face, and his person and clothing were found to be dirty. His appearance was repulsive, and his condition was such as to render him unfit to perform the duties of his office. He was aslsed to sign a written resignation which had been prepared, and was told that he might better resign than to have charges preferred against him, but that no threat was intended, and he was not obliged to sign the resignation. He requested an extended leave of absence, which the board refused. He did not sign the resignation, but surrendered his badge and lieys and left the room, saying, " You will not be ■bothered by me." When he left this meeting the board supposed he Intended to withdraw from the force, though he did not choose to sign the formal resignation. He did not thereafter report for duty nor serve on the force until November 26, 1897, when the superintendent reported him absent from duty since November 19, 1897, and the board, the same day, passed a resolution that his unexplained absence from duty for five days was held and deemed by them to be a resig- nation under their rule 515, which provides, among other things, as follows: " Unexplained absence, without leave, of any member of force, for five days, shall, at the option of the board, be deemed and held to be a resignation by such member, as of the time of the be- ginning of such absence." Thereafter, and on December 31, 1897, the said policeman caused certiorari proceedings to be instituted against the board to procure his reinstatement upon the force. The corpora- tion counsel thereupon advised the board that their action in declar- ing that the relator had resigned was illegal, because no charges had ibeen made, and he had not been given a trial, as provided for by the city charter. [In passing, it may be said that this opinion of the corporation counsel does not seem to agree with the decision of the Appellate Division, First Department, in the case of People ex rel. Fahy v. York et al., as Police Commissioners, 49 App. Div. 173. — Author.] However, on March 7, 1898, the board rescinded their resolution of November 26, 1897, and restored the relator to the force. 204 The Civil Service Law. The certiorari proceedings were thereupon discontinued, on payment by the board of his costs, $25. Thereafter, and on March 9, 1898, the charges were made upon which the relator was dismissed from the service. The relator did not serve on the force after November 19, 1897. The police board determined that the policeman had violated rule 311 of the police rules of said city, by being absent from duty, without permission of the superintendent of the board; that he was guilty, and for such offense they dismissed him from the force. Upon certiorari to review, held, by the court, that the transaction on Novem- ber IS, 1897, did not amount to a permission, consent or arrangement that the relator might absent himself from duty except upon the theory of a resignation, or such absence as might be deemed by the board under rule 515 to be a resignation. Whether an excuse for his absence appeared in the evidence, and if so, whether it was sufficient, were questions resting in the good judgment of the police board, and their conclusion would not be disturbed by the court. Opinion of Williams, J., in People ex rel. Wallace v. Diehl, 50 App. Div. 58. Beview by the Courts of a Bemoval of One who is Entitled only to Notice and to Make an Explanation. — When charges have a real basis or foundation, are made in good faith and not as a mere pretext for removal, and are of a substantial nature, showing some neglect of duty on the part of the officer, or something which materially affects his official acts, or his standing and character, and the officer is given an opportunity to explain away the charges, which explanation Is received and acted upon in good faith, then the sufficiency of the proof and the propriety of the removal under the statute rest entirely with the removing officer. Opinion of McLaughlin, J., in People ex rel. Walsh v. Brady, 48 App. Div. 128. But it is sufficient if the statutory formula or procedure Is observed and if the cause that is given Is one which, If established, would justify a removal. The superior is the judge whether or not the cause Is well founded. He does not have to substantiate the charge by evidence, and, on the other hand, the subordinate cannot adduce testimony to disprove it. People ex rel. Kennedy v. Brady, 166 N. T. 44. Same — Where there is no Form of Proceeding upon Bemoval. — The exercise of a power of removal is not reviewable by the courts where the power to remove, for cause, is vested in a particular person or body, and no form of proceeding is provided. People v. Bearfield, 35 Barb. 254; People v. Stout, 19 How. Pr. 171. Compare, however, People ex reli Munday v. Fire Commissioners, 72 N. T. 445. Beversal for Insuffi.cienc7 of Evidence upon the Trial. — The removal of a subordinate, if there is any evidence of incapacity or unfitness, will not be reviewed by the courts, but If there is an entire lack of evidence, the removal Is not " for cause," and the order will be reversed. People v. Campbell, 82 N. Y. 247. This decision was rendered in 1880. It followed People ex rel. Munday v. Board of Fire Comrs., 72 N. Y. 445; People ex rel. Sims v. Fire Comrs., 73 N. Y. 437. It is, indeed, difficult to reconcile this decision with that in the recent The Civil Seevice Law. 305 case of People ex rel. Kennedy v. Brady, 166 N. Y. 44, in which it is said that the head of the department may exercise the power of re- moval upon /acts in his own Iinowledge, and also that the party to be removed is not entitled to be sworn or to call witnesses. There is a legal presumption that public officers do their duty, and this exists in cases where they remove subordinates, and some pre- ponderence of evidence is needed to overcome the presumption. Peo- ple ex rel. Nutall v. Simis, 18 App. Div. 199. Validity of Kemoval not Beterm.iiiable in Action to Becover Salary.— An action to recover salary is not the appropriate way to try title to an office from which one claims he has been illegally removed. In McManus v. City of Brooklyn, 5 N. Y. Supp. 424; affid. under the title of Hagan v. City of Brooklyn, 126 N. Y. 643, it was said: " The difficulty in this case is that an officer who is improperly removed from his office seeks reinstatement, not directly, but in aa action to recover his salary, which is simply an incident of his office. The commissioners of the department had the power to remove the plaintiff, provided they complied with the statute, and their functions were judicial, and while their order removing McManus was illegal If attacked in certiorari proceedings, yet it was valid until so attacked and reversed. (People v. Board, 39 N. Y. 506, 519.) It is no answer to the proposition to say that the order was a nullity, for the reason' that the commissioners acted without jurisdiction, because one object of a common-law certiorari is to review the jurisdiction of inferior officers. (People v. Board, 72 N. Y. 415.) The plaintiff was put out of his office and has never been reinstated, and cannot maintain, in our opinion, an action for his salary while he is out of office." Opinion of O'Brien, J., in Van Valkenburgh v. The Mayor, 49 App. Div. 208. Compare cases to same effect cited under section 21. Bight to Iffiake an Explanation under Laws of 1898, Chapter 186, Belonged only to Those in the Competitive Class. — It is necessary for a relator to allege in his petition to procure a mandamus of reinstate- ment that the position from which he had been removed belonged to the competitive class in order that it should appear to the court that his position was within the protection of that provision in the act of 1898, giving him the right to receive in writing a statement of the reasons for his proposed removal and an opportunity to explain. Opin- ion of Parker, Ch. J., in People ex rel. Warschauer v. Dalton, 159 N. Y. 235. The various sections of the Greater New York Charter should be studied in order to ascertain who are protected from summary removal by those provisions. See the earlier paragraphs under this section. Laches. — ■ Where a person, who had been removed from office and who had sought restoration under the Veteran Acts, stopped that proceeding and within four months from the time when the act of 1898 had been finally declared applicable to the city of New York, Immediately took steps for restoration by mandamus under the latter 206 The Civil Service Law. statute, Jwld he was not guilty of laches. Opinion of Scott, J., in People ex rel. Strahan v. Feitner, 29 Misc. 702. Compare cases under section 21. Mandamus Does Not Lie to Compel Beinstatement When There is no power of Appointment or Removal.^ Where a head of a de- partment has not the power to appoint or remove a particular clerk, he has no power to reinstate him, and, therefore, a mandamus will not issue on behalf of such clerk commanding the head of the depart- ment to do what he has not the power to perform. However, his unauthorized act in removing the clerk must be treated as null and void and the clerk is still entitled to his position. Opinion of Haight, J., in People ex rel. Tate v. Dalton, 158 N. Y. 204. Injunction against Removals in Violation of Law and Civil Service Rules — Federal Service. — Courts of equity are not consti- tuted to regulate the departments of the government; their jurisdic- tion is limited to the protection of the rights of property; they have no concern over the appointment and removal of public oflBcers. Pos- sibly in exceptional cases where one having a vested right in and possession of a public office is sought to be ejected therefrom unlaw- fully and by force, equity may intervene by writ of Injunction to protect such possession against the Interference by a claimant to the office, remanding the latter to the legal remedies by which he may establish his title. Opinion of Jenkins, J., in Carr v. Gordon, 82 Fed. Rep. 373. Compare cases cited under sections 6, 7, 9 and 21. Federal Rules as to Removal' have not the Force and Effect of Law. — The President of the United States may make rules or regulations, administrative in their nature, which will govern the policy of his administration, and he can enforce the same by the removal of any person from office who refuses to abide thereby, but they cannot have the force and effect of law, nor will the courts enforce them. Opinion of Judge Rogers in Fleming v. Stahl, 83 Fed. Rep. 940. To the same effect were Thompson v. Hicks, brought in the Circuit Court of the United States for the Eastern District of Pennsylvania, October session, 1897, being a bill in equity to restrain the removal of Thompson as a superintendent of a station of the Philadelphia post- office; also Cooper v. Smythe, 84 Fed. Rep. 757, postmaster, brought in the Circuit Court of the United States for the Northern District of Georgia, November, 1897. This was a bill to restreiin the removal of Cooper as assistant postmaster. See opinion of the Supreme Court of the District of Columbia, by Cox, J., in Woods v. Gary, Postmaster- General, 25 Wash. Law Rep. 591. " It is said that the Federal Civil Service Rules, so far as they deny the unr^trained power of removal, are not the law of the land, but are mere executive orders, dependent for their force upon the vigilance and earnestness of the Chief Executive in compelling his appointees to regard and obey regulations voluntarily imposed by him as a voluntary regulation by the appointing power of its otherwise unre- The Civil Service Law. 307 strained liberty of removal. To this contention I am constrained to yield my assent. These rules regulating the power of removal were made by the President and may be repealed, altered, or amended at his pleasure. Prior to November 2, 1896, no such restraints existed, and if after that date they came into force, it was alone by virtue of an executive order. Law is not thus enacted, altered, or amended. Law must be an expression of a rule of action by the legislative authority. These civil service rules, so far as they deal with th& Executive right of removal, a right which is but an Incident of the power of appointment, are but expressions of the will of the President, and are regulations imposed by him upon his own action or that of heads of departments appointed by him. He can enforce them by requiring obedience to them, on penalty of removal. But they do not give to the employees within the classified civil service any such tenure of office as to confer upon them a property right in the office or place." Opinion of Judge Lurton, of the Circuit Court of the TInited States for the Middle District of Tennessee, in Morgan v. Nunn, 84 Fed. Rep. 551. Courts of Equity Will Not Enjoin Even Those Removals Wliich Are Contrary to Law. — " Another and equally serious objection to the power of this court to grant relief is found in the fact that a court of equity will not by injunction restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the ap- pointment of another. This is a general limitation upon the power of courts of equity, regardless of whether the removal is from a Federal, State, or municipal office." Opinion of Judge Lurton, of the Circuit Court of the United States for the Middle District of Tennes- see, in Morgan v. Nunn, 84 Fed. Rep. 551. In Sawyer's Case, 124 U. S. 200, 223, Chief Justice Waite, in a dissenting opinion, said that he was not prepared to hold that an officer of a municipal government could not, under any circumstances, apply to a Court of Chancery to restrain the municipal authorities from proceeding to remove him from his office without authority of law; that there might be cases when the tardy remedies of quo warranto, certiorari, and like writs would be entirely inadequate. But the court in its opinion in that case observed that under the Con- stitution and laws of the United States the distinction between common law and equity, as existing in England at the time of the separation of the two countries, had been maintained, although both jurisdictions were vested in the same courts, and held that a court of equity had no jurisdiction over the appointment and removal of public officers, and that to sustain a bill in equity to restrain or relieve against proceedings for the removal of public officers would invade the domain of the courts of common law or of the executive and administrative departments of the government. The court proceeded: " It is well settled that a court of equity has no' jurisdiction over the appointment and removal of public officers, whether the power of 208 The Civil Seevice Law. removal is vested, as well as that of appointment, in executive or administrative boards or oflBcers, or is intrusted to a judicial tribunal. The jurisdiction to determine the title to a public office belongs exclu- sively to the courts of law, and is exercised either by certiorari, error, or appeal, or by mandamus, prohibition, quo warranto, or information in the nature of a writ of quo warranto, according to the circum- stances of the case, and the mode of procedure established by com- mon law or by statute." The rule established in Sawyer's case was applied in Morgan v. Nunn, in which it was said that " a court of equity will not, by injunction, restrain an executive officer from making a wrongful removal of a subordinate appointee, nor restrain the appointment of another." Similar decisions have been made in other Circuit Courts of the United States; by Judges Pardee and Newman in Couper v. Smyth, Northern District of Georgia, 84 Fed. Rep. 757; by Judge Kirkpatrick in Page v. Moffett, District of New Jersey, 85 Fed. 38; by Judge Jenkins, Northern District of Illinois, in Can- v. Gordon, 82 Fed. Rep. 373, 379, and by Judge Baker, District of Indiana, in Taylor v. Kercheval, 82 Fed. Rep. 497, 499. See also Dudley v. James, 83 Fed. Rep. 345, and Fleming v. Stahl, 83 Fed. Rep. 940. Opinion of Harlan, J., White v. Berry, 171 U. S. 366. In this opinion it was also said: " If the assignment of some one to duty as ganger at the Hannis distillery in the place of the plaintiff did not work his removal from office, a court of equity ought not to assume to control the discretion which, under existing statutes, the executive department has in all such matters. Interference by the judicial department in such cases would lead to the utmost confusion in the management of executive affairs. But the plaintiff contends that the assignment of some one to duty In his place at the Hannia distillery is, in effect, a removal of him from office in violation of law, and that the object of the proceedings against him was to bring about that result. But, under the authorities cited, such proceedings cannot be restrained by a court of the United States sitting in equity, and, therefore, the court below erred in passing the final decree which has been brought here for review." The Doctrine as to Injunctions of Unlawful Bemovals as Laid Down by the Lower Courts, But Overruled by the U. S. Supreme Court.— The case just cited, 171 U. S. 366, reversed the decision of the lower court, in which it was held as follows: " A person who holds an office or public position from which he can be removed only for cause and after a hearing has not only an interest in but a right to the possession of the office he holds, and to its emolu- ments, and to that extent a vested right of which he can be deprived only by operation of law and not by the capricious action of a superior officer. He has a right to the protection of the law to prevent an injury to him by the doubtful assertion of the rights of another to his office. The only remedy that is adequate and complete must be of a preventive character, which seeks to restrain the superior from ousting The Civil Seetice Law. 209 the incumbent from the position. There can be no legal remedy for the reason that the Incumbent, when once ousted from his position, has no recourse whatever. The Incumbent is, therefore, entitled to a preventive remedy to preserve the "status quo" until the title to the position and office can be settled by some legal proceeding. Equity alone furnishes the remedy; if this remedy does not exist, then there is a case of an alleged wrong vrithout a remedy. An injunction may be issued to restrain the superiors from interfering with the incum- bents in the possession of their offices, the purpose of the injunction being in no sense to try the right of possession or title to the offices. Where Congress by a statute has undertaken to limit and restrain the appointing power, and the appointing power attempts to nullify the plain provisions of the act, the incumbent may have the aid of equity courts to protect his incumbency to the position until the defendant shall, in due course of judicial procedure, establish his right and title. Such an action falls within a well-recognized branch of relief by in- junction. While courts of equity uniformly refuse to interfere by the exercise of their preventive jurisdiction to determine questions relating to the title to office, they frequently recognize and protect the posses- sion of officers de facto by refusing to interfere with their possession in behalf of adverse claimants, or, if necessary, by protecting such possession against the interference of such claimants, and the granting of an injunction in such a case in no manner determines the question of title involved, but merely goes to the protection of the present Incumbents against the interference of claimants out of possession, and whose title is not yet established." (Citing High on Injunctions [2d ed.], § 13il5.) Butler v. White, «3 Fed. Kep. 578; revd. in 171 U. S. 366, upon this very point. Priddie v. Thompson, 82 Fed. 167; reported in full in the 14th U. S. Civil Service Commission's Report, at page 226, was in effect overruled by the decision of the United States Supreme Court in White v. Berry, 171 U. S. 366, revg. s. c, in 83 Fed. Kep. 578. Public Office Hot Private Property or a Bight of Property. — In harmony with the decision in White v. Berry, 171 U. S. 366, but de- cided earlier, were several decisions cited therein. They so far elabo- rate the doctrine that courts of equity will not enjoin even illegal removals, and so fully answer the opposing arguments, that more extensive mention of them is proper. In Taylor v. Kercheval, it was «aid: "Under our system of government, however, it may be in the parent country, all offices are created by law, and exist for the public good and not for private emolument.' Courts of Chan- cery concern themselves only with matters of property and the maintenance of civil rights. Such courts have no jurisdiction in matters of an executive or political nature, nor do they interfere with the duties of any department of the government except under special circumstances, and then only when necessary to the pro- tection of the rights of property. The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to the 14 210 The Civil Seevice Law. protection of rights of property. The incumbent of an official position has in no just sense a right of property in his office or employ Jaent, if It is an office or employment which Congress has power to abolish or the tenure of which it can impair. To assume jurisdiction to con- trol the exercise of executive or political powers or to protect indi- viduals in the enjoyment of purely political rights would be to Invade the domain of other departments of the government or to intrench upon the jurisdiction of the courts of common law. In 2 Beach on Modern Eq. Jur., § 670, it is said: 'The jurisdiction to determine the title to a public office belongs exclusively to courts of law, and equity has no jurisdiction over the appointment and removal of public officers and will not interfere in cases of this character, even in a collateral or indirect proceeding or in a bill to enjoin.' " Opinion of Judge Baker, of the United States Circuit Court for the District of Indiana (rendered in 1897), in Taylor v. Kercheval, 82 Fed. 497. In lilie manner, Judge Kirkpatrick, in the case of Page v. Jloffett, 85 Fed. Rep. 38, said: " It was settled, upon great consideration, in the case of Marbury v. Madison, 1 Cranch, 137, that the national courts cannot rightfully interfere with executive action in any case where an executive officer is authorized to exercise judgment or discretion in the performance of an official act. It is only in cases where an executive officer is required to perform a mere ministerial duty, in- volving no exercise of judgment, or discretion, that the courts may control or direct the performance of such ministerial acts. [In New York the power to control the executive as to his purely ministerial functions is denied. See Broderick v. Morton, 156 N. Y. 13G. — Author.] The same doctrine is affirmed in the matter of Hennen, 13 Pet. 230, and has never been doubted or denied. The appointment and removal of officers or employees involve the e-^ercise of judgment and discre- tion, and have never been regarded or held by the courts to be mere ministerial acts. Under U. S. Revised Statutes, 3148, providing that the Collector of Internal Revenue may appoint his deputies and remove them by giving such notice as the Commissioner of Internal Revenue may prescribe, the rules of the Commissioner of Internal Revenue have no such authority as law that a deputy collector can Invoke the equi- table interference of the courts to restrain his removal in violation of them. Neither Revised Statutes, 1753, nor the United States Civil Ser- vice Act of January 16, 1883, put any restrictions upon the power of removal by appointive offices except for refusal to contribute to politi- cal funds or neglect to render political service; hence Presidential Rule II, relating to the civil service, and providing (as amended July 27, 1897), that no removal shall be made without giving the accused, notice and an opportunity to make defense, has no such authority at law as confers upon the holder of an office a vested right thereto, with the right to invoke the equitable power of the courts to restrain his removal therefrom in violation of such rule. Opinion of Kirkpatrick, District Judge, in Page et al. v. Moffett, 85 Fed. Rep. 38. The Civil Sbkvice Law. 211 Character of Cliarges -where Removal can be Made only Upon Charges and After a, Hearing or Trial — Policemen and Piremen. — In proceedings to remove subordinates upon charges, the charges need not have the technical accuracy of an indictment, and the trial need not show the formality of a criminal prosecution. (People ex rel. Powers v. Welles, 18 App. Div. 132.) And for similar reasons it fs not necessary that the judgment should have the exact accuracy of the record of a criminal court. There Is no rule and no reason that requires that there should be separate judgments upon each charge. The finding of guilt upon one charge is suflacient to warrant punish- ment irrespective of the other charges. (People ex rel. McAleer v. French, 119 N. Y. 502.) Opinion of Jenks, J., in People ex rel. Eagan V. York, 53 App. Div. 336. Waiver of Hearing — Pacts not Sufficient to Constitute.— The law incorporating the city of New Rochelle declared that the police oflBcers and patrolmen of the former village should be the police officers and patrolmen of said city, and also that the removal of any member of the police force could be made only for incompetency or misconduct, upon written charges, and after notice and hearing before the police commissioners. A patrolman, subsequent to the establish- ment of the city, was summarily and Improperly removed and after- wards was Induced to make application for appointment as patrol- man, which application was thereafter denied. Upon proceedings in- stituted by the patrolman to procure a mandamus directing his re- instatement, held, that the relator by his application for appointment waived none of his rights under the charter, and the action of the police commissioners was without authority and Illegal. The statute in explicit terms continued the relator in office, subject only to removal for incompetency or misconduct, and it not being alleged that any proceedings for that purpose had been taken, a writ of mandamus must be granted. Opinion of Goodrich, J., in People ex rel. Meyers V. Dillon, 46 App. Div. 187. Becord of Police Officer as Evidetnce Upon the Trial. — The record of an officer on trial may be introduced in evidence and considered upon the question of his punishment. It is not to be considered upon the question of his guilt, and it Is violative of the rights of the person tried to take up such record after the proceedings have closed without Introducing it in evidence, and to consider it upon the ques- tion of guilt. (Citing People ex rel. Kiebrick, v. Roosevelt, 1 App. Div. 577, and People ex rel. Miller v. Wurster, 91 Hun, 234.) Opinion of O'Brien, J., in People ex rel. Dermody v. York, 50 App Div. 359. Fol- lowed in People ex rel. Quirk v. York, 52 App. Div. 295. In certiorari proceedings one will not be heard to claim that his dismissal from the public service was improper and illegal upon the ground that his record was considered by the officer who discharged him in determining the question of his guilt, if the petition upon which the writ of certiorari is issued, nowhere sets this up as one 212 The Civil Sekvice Law: of the errors requiring a reversal of the action of such officer. Opin- ion of McLaughlin, J., in People ex rel. McCollum v. Scannell, 56 App. Div. 51. When nothing more appears in the return than that the record of the relator was before the commissioner, it will assume that such record was used only for a proper purpose and no error can be predi- cated upon its use, unless it affirmatively appears that it was im- properly used for the purpose of determining the relator's guilt. Citing People ex rel. Simermyer v. Roosevelt, 2 App. Div. 498; s. c. afiEd., 151 N. T. 675; People ex rel. Strauss v. Roosevelt, 2 App. Div. 536; s. c. affd., 153 N. Y. 657; People ex rel. O'Neill v. Roosevelt, 17 App. Div. 301. Opinion of McLaughlin, J., in People ex rel. McCol- lum V. Scannell, 56 App. Div. 51. Propriety of a Commissioner Sitting as a Judge where the Charge Is Disrespect to the Commissioner. — The fact that charges allege that an accused patrolman was disrespectful to a sergeant in the presence of one of the commissioners, before whom he was tried, and that he was grossly impertinent to such commissioner, does not require the reversal of the judgment of conviction, upon the ground that the com- missioner in question was prejudiced against the patrolman, especially where that commissioner did not prefer the charge. (Citing and dis- tinguishing People ex rel. McMorrow v. Roosevelt, 23 App. Div. 533; Matter of Ryers, 72 N. Y. 1; People v. Dohring, 59 id. 374; People ex rel. Doherty v. Commissioners, 84 Hun, 66.) Opinion of Jenlcs, J., in People ex rel. Eagan v. York, 53 App. Div. 336. The decision of the head of a department, who has removed a subordinate, after a hearing upon charges, will, upon certiorari, be set aside, if the hearing has not the appearance of impartiality. If the head of the department appears to have been influenced by personal hatred towards the accused, or to have assumed the attitude of accuser or prosecutor towards the officer on trial, or to have prejudged the case. So held where the trial of the relator was before the mayor alone; where the mayor formulated the charges, and the record war- ranted the conclusion that the mayor was the real accuser and him- self made the charges and stood back of them; and the mayor ap- peared to have taken an interest in procuring witnesses to support the charges, and it also appeared that he had previously removed the relator from his office (which removal had been set aside by the court), and before the second trial had begun the mayor had openly said that " Miller (the officer removed) will go back to police duty in this city when there is no remedy left by law to stop it; " that he " would get rid of Officer Miller." A careful examination of all the facts and proofs contained in the record left the impression firmly fixed that the mayor had decided the case before the trial; that the trial was only a form by which his decision might be made a record and effectual for a lawful removal. Opinion of Kellogg, J., in People ex rel. Miller v. Elmendorf, 51 App. Div. 173. Where a mayor is the legally constituted tribunal to hear and de- The Civil Sbevicb Law. 313 termlne charges preferred against a member of the city police force, the fact that the mayor is prejudiced against the officer is not a fact competent for consideration in the review upon certiorari of a deter- mination of removal made by him. The mayor has jurisdiction to hear and determine charges of mis- conduct committed by the relator prior to the commencement of the mayor's term of office. Opinion of Edwards, J., in People ex rel. Miller v. Elmendorf, 57 App. Div. 340. § 24. Political Assessments Prohibited. — No officer, agent, clerk or employee under the government of the state of l^ew York or any civil division or city thereof shall, directly or in- directly, use his authority or official influence to compel or in- duce any other officer, clerk, agent or employee under said gov- ernment, or any civil division or city thereof, to pay or promise to pay any political assessment, subscription or contribution. Every said officer, agent, clerk or employee "who may have charge or control in any building, office or room occupied for any purpose of said government, or any said division or city thereof, is hereby authorized to prohibit the entry of any per- son, and he shall not knowingly perniit any person to enter the same for the purpose of therein making, collecting, receiving or giving notice of any political assessment, subscription or contribution; and no person shall enter or remain in any said office, building or room, or send or direct any letter or other writing thereto, for the purpose of giving notice of, demanding or collecting a political assessment, nor shall any person therein give notice of, demand, collect or receive any such assessment, subscription or contribution; and no person shall prepare or make out, or take any part in preparing or making out, any political assessment, (subscription or contribution) with the intent that the same shall be sent or presented to or collected of any officer, agent or employee, subject to the provisions of this act, under the government of the state of New York, or that of any civil division or city thereof, and no person shall knowingly send or present any political assessment, (subscrip- tion or contribution) to or request its payment of any said officer, agent or employee. Any person who shall be guilty of violating any provision of this section shall be deemed guilty of a misdemeanor. [1 Eeydecker's General Laws, 166. With tJie exception of the words in the above which we have italideed, it is almost verhaUm the same as section 314 The Civil Sekvice Law. 11 of the CiiAl Service Act a« amended hy Laws of 1884, chapter 357. The original Taw of 1883 did not contain either the italwized words or the words which we have enclosed in parentheses.^ Decisions as to the Analogous Federal Statute.* — The Federal Act of March 15, 1876, prohibited " all executive officers or employees of the United States not appointed by the President with the advice and con- sent of the Senate " from " requesting, giving to, receiving from, any other officer or employee of the government any money or property, or other thing of value for political purposes," and prescribed penalties. Held, no person could be indicted under it for any other act than the one precisely designated. Whatever may have been the attendant circumstances, and however they may have qualified the moral com- plexion of the transaction, the person indicted can only be tried for doing the thing which the statute prohibits, and unless this of itself, Isolated from all its concomitants, can be competently made a crime by Congress, the statute is nugatory. Opinion of Wallace, C. J., in United States v. Curtis; reported in Sixth Report of the New York State Civil Service Commission, 1888, p. 240. Power of Legislature to Begulate the Discipline of Administrative Officers — Political Assessments and their Effect upon the Service. — It is lawful for Congress to prescribe all needful regulations for the discipline of United States government officials, and to declare what Infractions of discipline shall be treated as criminal offenses. The power to prohibit acts of officers or employees which are incompatible with the proper discharge of their duties, or which impair the efficiency or tend to demoralize the public service, is essential to promote the end and object of government, and this power resides in the legislative department of the government. In executing this power Congress must of necessity excroise its Judgment and discretion In determining what acts are or are not of such a pernicious character and tendency. The legislative discretion embraces a large field, and its boundaries cannot always be readily located. It is only when Congress has palpably transgressed the limits of its discretion that the judicial department will intervene. Such a case might arise if Congress should attempt to prohibit an act of a nature pertaining so exclusively to the sphere of private conduct that it could not, by any implication, infringe upon official department, or official discipline. But it cannot be said that Congress transcended its discretion in prohibiting co-operation between officials in the raising of funds for political purposes, the prohibition in the statute applying only when there is concerted action between officials In this behalf, the statute really prohibiting transactions be- * See Sixteenth Annual Report of U. S. Civil Service Commission, 1868-1899, pp. 147-257, for an account of the investigation by that Com- mission of several cases of alleged violation of the Federal statute against political assessments; and for other important information as to the law and procedure in such cases. The Civil Sebvice Law. 315 tween officials which create the relation of donor and donee, and introduce party interests into the public service. Neither can it be said that Congress erred in assuming that the influences springing from this relation and these interests should be discouraged as liable to deflect the independence and impartiality which must rule official intercourse. Opinion of Wallace, C. J., in United States v. Curtis, ■supra. Power of Congress to Forbid Collection or Payment of Political Contributions.— It is not necessary to maintain that the co-operation of officials in raising funds for political objects is essentially demoral- izing to the public service, or subversive of discipline. It is sufficient to justify the exercise of the legislative discretion if the prohibited acts tend to introduce interests which disturb the just equipoise of official relations. If it is suggested that it is the right and duty of every good citizen to aid in promoting such political objects as he deems to be wise and beneficial, and that Congress has no consti- tutional power to abridge that right, the answer is that no citizen is required to hold a public office, and if he is unwilling to do so upon such conditions as are prescribed by that department of the govern- ment, which creates the office, fixes its tenure, and regulates its inci- denits, it is his duty to resign. Opinion of Wallace, 0. J., in United States V. Curtis, supra. Scope and Purpose and Justification, of Federal Statute. — The ■evident purpose of Congress in enacting the sixth section of the act of August 15, 1876 (chap. 287) (referred to in above citations), was to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Such a pur- pose was clearly within the just scope of legislative power, and that act was fairly within the legitimate means to such an end, and was constitutional. That law contemplated no restrictions upon either giving or receiving, except so far as might be necessary to protect, in some degree, those in the public service against exactions through fear of personal loss. The court declared: " A feeling of independ- ence under the law conduces to faithful public service, and nothing tends more to take away this feeling than a dread of dismissal. If con- tributions from those in public employment may be siolicited by others in official authority, it is easy to see that what begins as a request may end as a demand, and that a failure to meet that demand may be treated by those having the power of removal as a breach of some supposed duty, growing out of the political relations of the parties. Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior, as to promote the political views of the contributor, to avoid a discharge from service, not to exercise a political privilege." Opinion of Chief Justice Waite in Ex parte Curtis, 16 Otto (106 U. S.), 371. The New York Statute and the Earlier Federal Statute. — It should be noted that the New York statute (§ 24), under consideration. 216 The Civil Seevice Law. covers a much wider range than the Federal statute under considera- tion In the above paragraphs, for It forbids persons unconnected mth- the service as vrell as officials, not only from seeking subscriptions in the places vchere the duties of officials are to be performed, but of presenting a subscription, assessment or contribution paper to an official or public employee, and it even forbids all persons from requesting of public oflSeials and employees a contriiution. Can it be said, as vras urged by the defendant in the case above cited, that " it is not within the constitutional power of the legislative body to mal^e the giving or requesting or receiving of a voluntary contribution for political purposes by a subordinate government official a criminal offense," and that in the provisions of section 24, the Legislature has attempted to prohibit an act of a nature pertaining so exclusively to thfr sphere of private conduct that the prohibited act cannot by any impli- cation infringe upon official deportment or official discipline? It should not be overlooked that in the Curtis case great emphasis was laid both by the Circuit and by the Supreme Court of the United States, upon the fact that the act of August 15, 1876, did not prohibit all con- tributions of money or property by the designated officers and em- ployees of the United States for political purposes; neither did it prohibit them altogether from receiving or soliciting money or prop- erty for such purposes. It simply forbade their receiving from or giving to each other. Beyond this, no restrictions were placed on any of their political privileges. Provisions in the Present Federal Civil Service Tavt (Jajiuary 16, 1883) Relating to Political Asseesm.ents and Contributions. — The provisions of the present Federal Civil Service Law, relating to political contributions and assessments are much more stringent than those of the act of 1876, considered above. In order that they may be compared with the New York act we give them in full: § 2. * * * Fifth, that no person in the public service is for that reason under any obligation to contribute to any political fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do so. Sixth, that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body. * • * § 11. That no Senator, or Representative, or Territorial Delegate of the Congress, or Senator, Representative, or Delegate elect, or any officer or employee of either of said houses, and no executive, judicial, military, or naval officer of the United States, and no clerk or em- ployee of any department, branch, or bureau of the executive, judicial, or military or naval service of the United States, shall, directly or indirectly, solicit or receive, or be in any manner concerned in solicit- ing or receiving, any assessment, subscription, or contribution for any political purpose whatever, from any officer, clerk, or employee of the United States, or any department, branch, or bureau thereof. The Civil Service Law. ^1T or from any person receiving any salary or compensation from moneys: derived from tlie Treasury of the United States. § 12. Tliat no person shall, in any room or building occupied in the discharge of oflScial duties by any officer or employee of the United States mentioned in this act, or in any navy-yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or any other thing of value for any political purpose what- ever. § 13. No officer or employee of the United States mentioned ia this act shall discharge, or promote, or degrade, or in manner change the official rank or compensation of any other officer or employee, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose. § 14. That no officer, clerk, or other person in the service of the United States shall, directly or indirectly, give or hand over to any other officer, clerk, or person in the service of the United States, or to any Senator or Member of the House of Representatives, or Territorial Delegate, any money or other valuable thing on account of or to be applied to the promotion of any political object whatever. § 15. That any person who shall be guilty of violating any pro- vision of the four foregoing sections shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished by a fine- not exceeding five thousand dollars, or by imprisonment for a term not exceeding three years, or by such fine and imprisonment both, in the discretion of the court. Approved January 16, 1883. 'Construction of Foregoing. — The twelfth section of the Fed- eral Civil Service Act of January 16, 1883, to regulate the civil service, is not unconstitutional, because of its prohibiting all persons, whether in the employ of the United States or not, from soliciting contributions for political purposes in any of the places mentioned in that section of the act. United States v. Newton, Supreme Court, District of Columbia; Washington Law Reporter, Vol. 19, p. 770. Compare also Rogers v. City of Buffalo, 123 N. Y. 173; Kip v. City of Buffalo, 123 N. Y. 152; and In re Opinion of the Justices, 138 Mass. 601. An agent of the government who receives money to pay secret agents is not guilty of either receiving or being concerned in receiv- ing a contribution for a political purpose, within the meaning of the' Federal act of January 16, 1883 (ch^p. 27), where he received and honored an order from one of said secret agents to pay money out of the next remittance he should receive, to a person not in the gov- ernment service, as a contribution in aid of a political campaign, it appearing that said agent had nothing whatever to do with soliciting, inducing, or causing said secret agent to give the order, and had no relation or connection with the person to whom he paid the money. 318 The Civil Service Law. and had no concern in or control over the money after it was so paid, although he knew for what purpose it was paid. Said act does not forbid voluntary contributions for political purposes by persons in the employ of the government, but protects such persons from solicitation or coercion with respect to such contributions. TJ. S. Attorney-Gen- eral's opinion of January 25, 1896, p. 298, Vol. 21. Prohibitioii of Soliciting Contributions in Public Offices. — Under that provision of the Federal statutes (§ 12 of U. S. Civil Service Law) which says: " That no person shall, in any room or building occupied in the discharge of oflBcial duties by any officer or employee of the United States mentioned in this act, or in any navy yard, fort, or arsenal, solicit in any manner whatever, or receive any contribution of money or other thing of value for any political purpose whatever," sending a letter asking for a political contribution to a person addressed to one of these rooms or buildings, is not soliciting in that room or building. The soliciting is done where the letter is posted. Opinion of Richard Olney, Attorney-General of the United States, dated April 14, 1894. See U. S. Civil Service Report, No. 11, p. 116. The Report of the U. S. Civil Service Commission for 1898-1899, at pages 149 et seq., contains an elaborate argument against the position taken upon this question by the Attorney-General. It will be noticed that the present New York statute expressly for- bids the sending of a letter soliciting political contributions to any public office, building, or room. § 25. Officers or Candidates Not to Promise Influence, et cetera; "Public Officer'" and "Public Employee" Defined.— Whoever, while holding any public oflSce, or in nomination for, or while seeking a nomination or appointment for any public office, shall corruptly use or promise to use, whether directly or indirectly, any official authority or influence (whether then possessed or merely anticipated) in the way of conferring upon any person ; or in order to secure or aid any person in securing any office or public employment, or any nomination, confirmation, promo- tion or increase of salary, upon the consideration or condition that the vote or political influence or action of the last named person, or any other, shall be given or used in behalf of any candidate, officer or party, or upon any other corrupt condition or consideration, shall be deemed guilty of bribery or an at- tempt at bribery. And whoever, being a public officer, or hav- ing or claiming to have any authority or influence for or affect- ing the nomination, public employment, confirmation, promo- tion, removal or increase or decrease of salary of any public officer, shall corruptly use, or promise, or threaten to uae any The Civil Seevice Law. 319 such authority or influence, directly or indirectly, in order to coerce or persuade the vote or political action of any citizen or the removal, discharge or promotion of any officer or public employee, or upon any other corrupt consideration, shall also be guilty of bribery or of an attempt at bribery. Every per- son found guilty of such bribery, or an attempt to commit the same, as aforesaid, shall, upon conviction thereof, be liable to be punished by a fine of not less than one hundred dollars nor more than three thousand dollars, or to be imprisoned not less than ten days nor more than two years, or to both said fine and said imprisonment in the discretion of the court. The phrase " public officer " shall be held to include all public officials in this state, whether paid directly or indirectly from the public treasury of the state, or from that of any civil division thereof, or by fees or otherwise ; and the phrase " public employee " shall be held to include every person not being an officer who is paid from any said treasury. [1 Eeydecker's General Laws, 167. Section 14 of the original Civil Service Law was veriatim, the same as above, except that the term " politi- cal division " was used instead of " dvil division."'} Agreements to Procure or Control Appointments. — Contracts for the buying, selling, or procuring public offices are utterly void as contrary to the soundest public policy, and, indeed, as a constructive fraud upon the government, such contracts being void at common law, whether prohibited and made void by statute or not. The right of appointment is not the property of the appointing officer, and he has no right to barter it or dispose of it, and an agreement to appoint 1b likewise void. Agreements to procure or control appointments to public office, or agreements to aid another in obtaining an appoint- ment, based upon a consideration contingent upon success, or promises to use personal Influence to procure an appointment to office, are contrary to public policy and void, without reference to whether im- proper means are contemplated or used in procuring the appointment. See American and English Encyclopedia of Law, title " Public Officers," and cases there cited. Public Officers as Distinguished from. Public Employees. — A pub- lic office as distinguished from a mere public employment can be created only by the Legislature or by some municipal board or body authorized by the Legislature to create a public office. Opinion of Follett, J., In Miller v. Warner, 42 App. Div. 208. The fact that a person holding a position under a city government receives a salary is an indication that the position is an office, not a mere employment, but is not conclusive upon that point. Cain v. Warner, 45 App. Div. 450. 220 The Civil Seevicb Law. A person is not an officer within the meaning and effect of the decisions, who takes no oath of oflftce, and assumes no obliga- tion to perform any particular specific duties, but who simply under- takes to act as the legal adviser of the board of charities and cor- rections in a city, and to represent that board in such legal proceedings as it shall find necessary to conduct in court, and who is retained under the title of " counsel to the board of charities and corrections " at a fixed salary per annum under a general authority conferred upon the board by statute to appoint storekeepers and " all other oflicers, subordinates and assistants necessary for the proper discharge of their duties." (Citing Olmstead v. Mayor, 42 N. Y. Super. Ct. 481.) Such a person, who, under section 1536 of the Greater New York charter, is transferred to the position of assistant corporation counsel, but whose services are refused by the corporation counsel, is precluded from recovering his salary during the time unemployed by reason of his failure to do any work for the city during the period covered by his claim. His remedy, when the corporation counsel declined to accept his services, was by means of a writ of mandamus to seek reinstate- ment in the position to which he was assigned by the plan of transfer. Opinion of Bartlett, J., in Quintard v. City of New York, 51 App. Div. 233. Decisions as to Whether Certain Fositions were Offices or Em- ployments. — Under chapter 227 of the Laws of 1893, the Superin- tendent of Public Buildings has power, " subject to the approval of the trustees, to appoint all persons necessary to the maintenance of the Department of Public Buildings, and the grounds under his charge." The persons so .authorized to be appointed by him are not public officers, but employees. No authority is vested in him, or in the trustees of the public buildings, to create an office. Opinion of Herrick, J., in Matter of Ostrander, 12 Misc. 476; affd., 146 N. Y. 404. Janitor of City Building. — The position of janitor of the City Build- ing in Albany being one created by statute, with the appointing power designated, the salary fixed, and the general duties prescribed by law, is a public office rather than an employment. The incumbent, although he is designated as a janitor, is charged with the performance of duties in which the public are interested. (Citing Rowland v. Mayor, 85 N. Y. 376; People ex rel. Henry v. Nostrand, 46 id. 381.) Opinion of Chester, J., in Matter of Hardy, 17 Misc. 667. Dockmasters. — Dockmasters in the department of docks in the city of New York are not mwely clerks or employees, but are public officers, since the captain and harbor masters of the port, to whose functions they succeeded, were unquestionably public officers, and also since dockmasters are recognized as officers by section 848 of the charter, providing that a dockmaster " shall not appoint any deputy, or assistant, or delegate the powers of his office to any I>erson or persons whatever." Opinion of CuUen, J., in People ex rel. Percival v. Cram et al., 164 N. Y. 166. The Civil Service Law. 321 Keeper of City Morgue. — The position of keeper of the city morgue in New York city is a public office — not a public employment; appointment to it should be evidenced either by a commissioner in writing or by a written minute in the records of the appointing board, for it is a jyosition of public trust, not transient, occasional, or accidental, and the salary fixed is by the year. The position is not a menial one, such as that of a janitor, or servant, nor is the incumbent a per diem laborer, whose employment may be evidenced by a mere verbal direction to go to work at prevailing rates. Opinion of Mc- Adam, J., in People ex rel. Barry v. Keller, 30 Misc. 52. Teachers in Schools. — An assistant teacher in the public schools ■of the city of New York who possesses an unrevoked license from the State Superintendent of Public Instruction, licensing him to teach in any public school in the State of New York, who has been hired as assistant teacher by the ward trustees, is not a public officer but an employee. His employment is contractual, and his proper remedy is by action. Mandamus to procure reinstatement does not lie as of strict right, and may be refused in the discretion of the court; hence the former denial of that remedy does not bar an action to recover salary. Opinion of Landon, J., in Steinson v. Board of Education of N. Y., 165 N. Y. 431. llassachxisetts Becisions as to Public Offices and Employments. — The terms public office and public officer are often used, and have acquired a well-understood signification. The difficulty lies In the application of general definitions to particular cases. The determi- nation of an individual case, especially one that is near the line, may require an examination not only of the statutes bearing upon it, but of all the facts and circumstances connected with It. Among those who, in Massachusetts, have been declared by the courts to be public officers, may be mentioned the following: Sheriff, Fowler v. Beebe, 9 Mass. 231; deputy sherifE, Bucknam v. Euggles, 15 Mass. 180; coroner, Nason v. Dillingham, 15 Mass. 170; constable, Elliott v. Willis, 1 Allen, 461; public weigher of vessels, Commonwealth v. Woods, 11 Mete. 59; field driver, Gilman v. Holt, 4 Pick. 258; assessor. Pease v. Smith, 24 Pick. 122; surveyor of highways, Williams v. Adams, 3 Allen, 171; postmaster, ICeenan v. Southworth, 110 Mass. 474; commissioners ap- pointed by the Governor, Fitchburg R. E. Co. v. Grand Junction Co., 1 Allen, 582; town liquor agent, Dwinells v. Parsons, 98 Mass. 470; county commissioners, New Haven & Northampton Co. v. Hayden, 117 Mass. 433; district attorney, Bullock v. Aldrich, 1 Gray, 206; city physician. Commonwealth v. Swasey, 133 Mass. 538; city engineer, Chandler v. Lawrence, 128 Mass. 213; town clerk and moderator, Attorney-General v. Crocker, 138 Mass. 218; road commissioner, Clark V. Easton, 146 Mass. 93; police officer, Phillips v. Boston, 150 Mass. 491, 494; and master of house of correction, and superintendent and Instructor thereof, O'Hara v. Jones, 161 Mass. 391. On the other band, the court says, in Brown v. Civil Service Commissioners, that " every copying clerk or janitor of a public building is not necessarily a pub- 323 The Civil Seetice Law. lie officer." From these illustrations, and upon general considerations, it may be said that a public officer is one who by the authority of the Legislature, either through appointment or election, is charged with a duty, public in its nature, and which concerns the government of the State and the rights of its citizens. Whoever is intrusted with powers which concern the administration of the affairs of the Com- monwealth or the rights of the public, and is appointed or elected to that duty under legislative authority, may be said to be a public officer. Whatever just criticism may be made upon this definition is more properly directed against the attempt to define than the defini- tion itself. It is not easy to lay down any rule which may not be subject to modifications in view of specific facts. Applying these principles the Massachusetts Attorney-General has given it as his opinion that laborers are not public oflBcers. Nor can it be properly said that clerks, copyists, recorders, bookkeepers, agents, etc., hold public office; nor that foremen of laborers, engineers, jani- tors, persons having charge of steam boilers in school buildings, turn- keys, watchmen, drivers of prison wagons, gatemen or guards in public parks and ferries are public officers. The duties of all these are rather in the nature of employment than officers. They take no part in government. They do the work of the Commonwealth. They are its employees, not its officers. On the other hand, truant officers in Massachusetts, although exercising a limited jurisdiction, are yet charged with responsible and important duties. They are directed (Stat. 1894, chap. 498, § 20) to make complaint for truancy, and to carry into execution the judgment thereon; to serve all legal processes issued by the court; also (§ 23) to apprehend and take to school with- out a warrant all truants found wandering about the streets. They are clothed with authority, and " have and exercise some powers of government." (Field, C. J., in Brown v. Civil Service Commissioners.) The position of draw-tender is also one which directly concerns the rights of the public. Public Statutes of Massachusetts, chapter 53, section 30, provides that a draw-tender shall have full control of passing vessels through the draw, having due regard for the public travel, and shall enforce the ordinances or by-laws relating to the same. This makes him a public officer. {Vide Nowell v. Wright, 3 Allen, 166.) Opinion of Hosea M. Knowlton, Attorney-General of Massachusetts, dated May 26, 1896; reported in pamphlet issued by Massachusetts Civil Service Commission, containing civil service cases, decisions and opinions, p. 85. § 26. Attendance of Witnesses; Fees. — "Witnesses and officers to subpoena and secure the attendance of witnesses before said commission, shall be entitled to the same fees as are allowed witnesses in civil cases in courts ot record. Such fees need not be prepaid, but the comptroller shall draw his warrant for The Civil Seevice Law. 333 the payment of the amount thereof, when the same shall have heen certified to hy the president of the commission, and duly proved by affidavit or otherwise to the satisfaction of the said comptroller; and all state, county, town, municipal and other officers and their deputies, clerks, subordinates and employees shall afford the said board all reasonable facilities in conduct- ing the inquiries specified in this act, and give inspection to said board of all books, papers and documents belonging, or in any way appertaining to the respective offices, and shall also produce said books and papers, and shall attend and testify when required to do so by said commission.* [1 Heydecker's General Laws, 168. Substantially the same provision appeared in section 16 of the original Civil Service Act as amended l)y Laws of 1884, chapter 357.] § 2Y. Taxpayer's Action.— The right of any taxpayer to bring an action to restrain the payment of compensation to any person appointed to or holding any office, or place or employ- ment in violation of any of the provisions of this act, shall not be limited or denied by reason of the fact that said office, or place or employment shall have been classified as, or deter- mined to be, not subject to competitive examination ; provided, however, that any judgment or injunction granted or made in any such action shall be prospective only, and shall not affect payments already made or due to such persons by the proper disbursing officers, in accordance with the civil service rules in force at the time of such payments. [The aiove is new. 1 Heydecker's General Laws, 168.] Purpose of the Section. — This section was undoubtedly enacted in order to avoid the effect of the decision in Chittenden v. Wurster, 152 N. Y. 345, which was generally construed as holding that a classifica- tion made by the proper commission, even if erroneous and improper, must first be set aside in a direct proeeeSing for that purpose, before any steps could be taken to declare void an appointment made pur- suant to the classification; in other words, not only that the classifi- cation, even though erroneous, was a sufficient protection to the ap- pointing ofiBcer, but also that, until it was set aside in a direct pro- ceeding, it would continue to be such a protection. Compare Rowley V. Rochester, cited under section 19. Suits to Enjoin. Payment of Salaries to Persons Appointed in Violation of Civil Service Law. — A taxpayer's action may be brought 1 Compare section 6 (4) of the present act. 234 The Civil Seetice Law. under section 1925 of the Code of Civil Procedure, against a city and the officers thereof who have to do with the paying of the salaries of persons In the service of the city, to obtain a judgment restraining the payment of a salary, upon the ground that the appointment was Illegal because in violation of the Civil Service Laws and Regula- tions of the State. Rogers v. City of Buffalo, 123 N. Y. 173. To Restrain Illegal Employiaeiits. — A taxpayer's action may be brought to restrain a city and its officers from making a contract with a person for his services and restraining payment to him for services rendered If the position to which he is appointed is in the competitive class and if he has failed to pass a civil service examination and to obtain a right to certification from the eligible list. Peck v. City of Rochestei-, 3 N. Y. Supp. 872. Other Remedies of Taxpayers. — Comi>are section 19. § 28. Saving Clause — All rules, regulations and classifica- tions for appointment or promotion in the civil service of the fitate or any city or civil division thereof, not inconsistent with the provisions of this act, established with the approval of the governor or the state commission under authority of law prior to the passage of this act, shall continue in full force and effect until annulled or amended pursuant to the provisions of this act; and the state civil service commissioners and the munici- pal civil service commissioners of any city, now in office, ap- pointed or designated under the provisions of law prior to the passage of this act, shall continue in .office until their successors are appointed and qualify, and shall have the same tenure and all the powers and duties which they would have if appointed under the provisions of this act. All merit and eligible lists of persons examined prior to the passage of this act, under the civil service rules and regulations in force at the time of such examination, shall be continued in full force and effect as if formed under the provisions of this act, subject, however, to such reasonable regulation and revision as the rules shall pre- scribe. [New. 1 Heydecker's (General Lwws, 169.] § 29. Repeal — Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is re- pealed. All other acts or parts of acts, whether general, special or local, and all rules, regulations and classifications for ap- pointment or promotion in the civil service of the state or any; The Civil Seevicb Law. 235 civil division thereof, inconsistent with the provisions of this act are hereby repealed ; provided, however, that any act done or right accruing, accrued or acquired, or liability, penalty, or punishment incurred prior to the passage of this act shall not be affected or impaired ; but the same may be asserted, en- forced, prosecuted or inflicted as fully, and to the same extent, as if the several acts herein referred to had not been amended or repealed. [New. 1 Heydecker's General Laws, 169.] Certain New York Charter Provisions Not Inconsistent, and, Therefore, Not Repealed. — Section 1543 of the Greater New York charter was not repealed by the White Civil Service Act. Opinion of Pattferson, J., in People ex rel. Martin v. Scully, 56 App. Div. 302. Compare cases cited under section 10 a^ to charter provisions re- lating to civil service in general being repealed by the Civil Service I/aw. Greater New York Charter as to Firemen and Policemen not Re- pealed.— IJ either section 728 nor section 292 of the charter of Greater New York can be deemed an act or rule or regulation or classification for appointment or promotion in the civil service of the State or any civil division thereof, but relate rather to the administration of the fire and police departments, and cannot be considered repealed by section 29, chapter 370, Laws of 1899, the so-called "White Law." Opinion of Fitzgerald, J., in People ex rel. Silvey v. Civil Service Com- mission, 30 Misc. 519. § 30. When to Take Effect, — This act shall take effect imme- diately. [TMs act took effect April 19, 1899. 1 Eeydecker's General Laws, 170.] SCHEDULE OE LAWS KEPEALED. Laws of. Chapter. Sections. 1883 354 AIL 1884 312 AIL 1884 357 AIL 1884 410 AU. 1886 , i 29 AIL 1887 464 AIL 1888 119 ...,..,.- -.,..r.., .-.,.. AIL 1890 67 All. 15 226 The Civil Service Law. Schedule of Laws Eepeaied — Continued. Laws of. Chapter. Sections. 1892 ,577 AIL 1894 681 All. 1894 716 All. 1894 717 All. 1895 344 All. 1896 821 All. 1897 428 All. 1898 184 All. 1898 186 . . .,... All. [Beoame a law April 19, 1899.J Constitutional Provision. AnTiCLE V, Section 9. * * * Appointments and pro- motions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained, so far as prac- ticable, by examinations, which, so far as practicable, shall be competitive ; provided, however, that honorably discharged sol- diers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and pro- motion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section. No Civil Service Section in. Early Constitutions.— There was no provision In the Constitution of 1846, or in any of its numerous amend- ments, requiring appointments in the civil service to be made accord- ing to a general system based upon a merit and fitness to be ascer- tained by competitive examinations under public authority. Opinion of O'Brien, J., in People ex rel. McClelland v. Roberts), 148 N. Y. 360. Present Constitutional Provision Analyzed.— A careful study of the language of the constitutional provision as to civil service appoint- ments, and the differences between it and earlier statutes is advisable. Judge O'Brien, in his dissenting opinion in Chittenden v. Wurster, 152 N. Y. 345, has called attention to some changes or differences in the phraseology, indicating in his opinion an expression by the people of a different Intent than that embodied in the early civil service statutes. We quote from him: " Before the Constitution was adopted, and under the statute and rules, the administration of the law in the State was left largely with the Governor, and in cities with the mayor. They could exercise what may well be called the dispensing power; that is, the power to say whether the law and the rules should apply to a particular case. * * * It was not necessary to determine, and in fact scarcely ever was deter- mined, that it was not practicable to fill the place by competitive ex- aminations. They could exempt the place for various reasons at dis- cretion or without any reason. This resulted from the vague lan- guage of the statute which did not, as the Constitution now does, un- 228 The Constitutional Pbovisions. gualifiedly limit such special exceptions to cases where it is not practi- cable to fill the place by competitive examination. The places were to be filled by examinations ' as nearly as the con- ditions of good administration will warrant.' The mayor was to make regulations for the admission of persons to the civil service of the city upon the principle of competitive examinations ' as may best promote the efficiency thereof.' These vague and ill-defined excep- tions and limitations did not confine the appointing power to the ques- tion of practicability, as the Constitution now does." Merit and Fitness Defined. — " The terms merit and fitness, as used in the Constitution and Civil Service Laws, are not synonymous and interchangeabla * * * Merit means the quality of deserving the office because of excellence and worth. This obviously comprises com- petency, intelligence, education, with special reference to an under- standing and linowledge of the duties of the office. * * ♦ Fitness means the quality of being suitable and adapted to the performance of those duties. This, in some cases, obviously includes habits, industry, energy, ambition, tact, disposition, knowledge of human nature, discretion, shrewdness, suitable physical presence, etc., matters which require an examination of a vei7 different character from that which may test the competency, excellence and worth of a candidate." Opinion of Wright, J., in Tobin v. Knauber, 27 Misc. 253. Accordingly held, that where civil service commissioners had examined for merit only under the Black Law, they could not, after its repeal, by merely doubling the merit rating, declare it to be the rating for merit and fitness, even though in their opinion the so-called merit examination was a proper test of both merit and fitness. This con- clusion of law was in effect overruled by the decision in People ex rel. Drake v. Common Council, 163 N. Y. 23, but it has never yet been decided that merit and fitness are one and the same thing. At a time when the system of dual, merit and fitness, examinations was In force it was said by Judge Hiscock: " The distinction between the qualities of merit and fitness which are to be subjected to com- petitive examination are perfectly well recognized. It is well settled that an examination for merit alone does not disi)ense with or take the place of an examination for fitness, and that a person who has stood the test of examination for merit may still not be a proper person for appointment under the test of fitness." Opinion of His- cock, J., in People ex rel. Drake v. Common Council of Syracuse, 26 Misc. 522. While this point is of little importance now compared to what it was during the period when the dual system of examination was in effect and especially during the period after the repeal of the act when, be- fore examinations under the new law had been held, eligibility was de- termined by doubling the merit rating, yet it is significant as to the scope which examinations should now have, and it is possible that the courts might review examinations and might In some cases declare The CosrsTiTUTioNAL Pbovisions. 239 them invalid if they did not embrace those matters properly falling ■under the head of fitness as distinguished from merit. May be Determined by one Examination. — It is to be noted that "wMle the decision of the Special Term in People ex rel. Drake v. Common Council was reversed in 43 App. Dlv. 342, it was because It appeared that the character of the examination in question, al- though certified to be for merit only, was such in fact as to deter- mine both the merit and fitness of the applicants, and was obviously so regarded by the Civil Service Board, and, therefore, their arbitrary action in doubling the rating, in lieu of holding a separate examina- tion for fitness, did not contravene the principle of competitive exami- nation, which is the fundamental and essential feature of the con- stitutional provision relating to the civil service. Yet in this case it was said by Judge Adams, writing the opinion of the Appellate Division: " The examination of the relator in February, 1898, was In fact just as much an examination for toth ' fitness ' and ' merit ' as though there had been two separate examinations; and it was ob- viously so regarded by the examiners. In saying this it is not neces- sary to assert that the terms ' merit ' and ' fitness ' are synonymous. Indeed, It is by no means impossible to conceive of cases where they would not and could not be so considered." A person who has been examined for merit by a municipal civil ser- vice commission in an examination which actually covered both merit and fitness under the provisions of the " Blacli Law " (chapter 428 of the Laws of 1897), requiring an examination for fitness by the appoint- ing power as well as an examination for merit by the Civil Service Commission, each with a rating based on a maximum of 50 per cent., is to be deemed, after the repeal of that law, to have been examined for' both merit and fitness, and to have a rating of 98 7-10 per cent, on a maximum of 100 per cent., where a rule of the Civil Service Board, adopted under chapter 186 of the Laws of 1898, has provided that ratings given after an examination under the prior law for merit only shall be multiplied by two, and the result of such multiplication shall be the rating for merit and fitness, and he is, therefore, entitled to be placed on the eligible list with such rating. People ex rel. Drake V. Knauber, 163 N. Y. 23. Extent to Which Examinations are to Control — Practicability — Propriety and Necessity of a Probationary Term. — So far as practi- cable the declaration of the Constitution is that appointments and promotions shall be made according to merit and fitness. The obvious purpose of this provision was to declare tlie principle upon which promotions and appointments in the public service should be made, to recognize in that instrument the principle of the existing statute upon the subject, and to establish merit and fitness as the basis of such appointments and promotions in place of thfeir being made upon partisan or political grounds. (See Records, Con- stitutional Convention, Vol. 5, p. 244; Vol. 6, p. 2552 et seq.) It then 230 The Constitutional Pbovisions. declares that the merit and fitness shall be ascertained by examina- tions, and also the extent to which they shall be thus determined. Tlie extent to which examinations are to control is declared to be only so far as is practicable. This language clearly implies that it is not en- tirely practicable to fully determine them in that way. It was the purpose of its framers to declare those two principles and leave their application to the direction of the Legislature. As was said by the chairman of the committee to which this amendment was referred: " It seemed best to the committee, after very careful and repeated consideration, to leave the application of the principle (of merit and fitness) to the good sense of the Legislature — the application of it." Thus it is apparent, not only upon the face of the provision itself, but from the debates in the constitutional convention, that the framers of this amendment did not intend to absolutely determine how the merit and fitness of appointees were to be ascertained and determined. The Constitution provides that to an extent those questions are to be determined by an examination, but it is obvious that it was understood at that time that it would he impracticable to fully determine the merit and fitness of an employee or appointee by a mere examination, whether competitive or otherwise. It is to be observed that the provision of the Constitution is that the merit and fitness of the applicant or appointee shall be ascertained in the manner stated so far as practi- cable; that is, in part at least, if they can be even partially ascertained in that manner. The words "so far as practicable" plainly relate to the degree or extent to which the examination should control. The provision is not that the examination shall be the basis of determining merit and fitness when or where, or in such cases as it is practicable, but that in all cases they are to be ascertained by an examination, only so far as practicable. In other words, it does not declare that the examination shall control in ascertaining merit and fitness in any or all cases where it is practicable, but that the qualifications of the candidate shall be ascertained in each case by an examination to the extent and only so far as it is practicable and, consequently, suffi- cient to insure the selection of proper and competent employees. The Constitution plainly implies that other methods and tests are to be employed when necessary and calculated to fully ascertain the merit and fitness of the applicant. If a probationary term or other method is neces- sary to enable the appointing officer to fully or correctly ascertain the merit and fitness of the applicant, the plain and clear intent of this provision is that it shall be employed. Assuming that the framers of the Constitution contemplated that other methods might also be employed, surely it cannot be properly said that the trial of an applicant for a probationary period is not an appropriate method of testing and thus correctly ascertaining his merit and fitness. Besides, it is a reasonable method. Indeed it is the usual one. * * * Therefore, that the method provided by the statute and. the rules of the Civil Service Commission is appropriate and well cal- The Constitutional Pkovisions. 331 "culated to materially aid an officer or department in determining the merit and fitness of an employee, cannot be successfully denied. It cannot be properly said that either the pre-existing statute which pro- vided for a probationary appointment as one of the means of ascer- taining the merit and fitness of applicants, was In conflict with that provision of the Constitution; or that such a provision in acts since enacted is unconstitutional. Opinion of Martin, J., in People ex rel. Sweet V. Lyman, 157 N. Y. 368. Compare cases cited under sections 8, 9 and 12 (4). A Constitutional Power of Appointment. — The power of appoint- ment implies a discretion in the appointing power as to whom he shall appoint, and embraces (when not limited by paramount law), not only perfect liberty as to the person to be appointed, but the duty of personally investigating the character and qualifications of the pro- posed appointee as to his fitness to discharge the services required of him. (Citing Menges v. City of Albany, 56 N. Y. 374; People ex rel. Killeen v. Angle, 109 id. 564, 573.) The choice of a person to fill an oflSce constitutes the essence of the appointment, and the selection must be the discretionary act of the officer clothed with the power of appointment. (19 Am. & Bng. Ency. of Law [1st ed.], 423, and cases cited.) The power of appointment contemplates the exercise of judg- ment and discretion in the appointing power, as to whom he shall ap- point and responsibility for the person so selected; and to secure this, the selection must be the independent, untrammeled act of the ap- pointing officer. (Menges v. City of Albany, 56 N. Y. 374.) The Legis- lature can, undoubtedly, under the Constitution take away from par- ticular city officers the power of appointment and confer it upon some other local authority. It can prescribe the term of office of the appointee and his power and duties, and the formula of his appointment, but its power ceases then; it cannot deprive the ap- pointing power of the exercise of its discretion as to the personnel of the appointee. That is the essence of the power. The Legis- lature is expressly authorized to designate the local authority, who shall appoint the local officers, and it is impliedly prohibited from doing more than that, or from placing limitations upon this power of appointment. As was said in People ex rel. Wood v. Draper, 15 N. Y. 544, " every positive direction contains an implication against any- thing contrary to it; or which would frustrate, or disappoint, the pur- pose of that provision." (Citing Rathbone v. Wirth, 150 N. Y. 459, 468; People ex rel. Burby v. Howlaud, 155 id. 270, 280.) The foregoing paragraph appears in the opinion of the Appellate Division, Third Department, in People ex rel. Balcom v. Mosher, 45 App. Div. 68, as written by Judge Herrick, in which it was heU, that the Legislature could not constitutionally enact a Civil Service Law that would confine an officer possessing a constitutional power of ap- pointment to the right to appoint only the highest person on the list; but also practically holding that this constitutional power of appoint- ment, when considered in connection with the civil service clause of 233 The Constitutional Pho visions. the New York Constitution, justified the Civil Service Commission Id limiting the appointing officer to a selection from the three highest. Power of Appointment Belonging to Federal Officials — To what Extent can it be Restricted. — ■ In discussing the question to what ex- tent the constitutional power of appointment can be limited by Con- gress, Attorney-General Akerman, in 1871, said: " It has been argned that a right in Congress to limit in the least the field of selection im- plies the right to cai-ry on the contracting process to the designation of a particular individual. But I do not think this is a fair conclusion. Congress could require that officers shall be of American citizenship, or of a certain age; that judges should be of the legal profession and of a certain standing in the profession; and still leave room to the appointing power for the exercise of its own judgment and will; and I am not prepared to affirm, that, to go further, and require that the selection shall be made from persons found by an examining board to be qualified in such particulars as diligence, scholarship, integrity, good manners, and attachment to the government, would impose an unconstitutional limitation on the appointing power. It would still have a reasonable scope for its own judgment and will. But it may be asked, at what point must the contracting process stop? I confess my inability to answer. But the difficulty of drawing a line between such limitations as are, and such as are not, allowed by the Constitu- tion, is no proof that both classes do not exist. In constitutional and legal inquiries right or wrong is often a question of degree. Yet it is impossible to tell precisely where, in the scale, right ceases and wrong begins. Questions of excessive bail, cruel punishments, excessive damages, and reasonable doubts, are familiar instances. In the mat- ter now in question it is not supposable that Congress or the President would require of candidates for office qualifications unattainable by a sufficient number to afford ample room for choice." Opinion of A. T. Akerman, Attorney-General of the United States, dated August 31, 1871, considering the constitutionality of that clause in the Federal appropriation bill, act of March 3, 1871, which prescribed a system of competitive civil service examinations, reported in Sixth Annual Report of the New York State Civil Service Commission, 1888, p. 279. In the same opinion Attorney-General Akerman declared that the test of a competitive examination for admission to the civil service of the United States might be resorted to in order to inform the conscience of the appointing power, but could not be made legally conclusive upon that power against its own judgment and will. Under the act cited, the President might regulate the exercise of the appointing power vested in the heads of departments, or in the courts of law, so as to restrict appointments to a class of persons whose qualifications or fitness had been determined by an examination instituted inde- pendently of the appointing power. A constitutional power of ap- pointment implies an exercise of judgment and will, the officer must be selected according to the judgment and will of the person or body in whom the appointing power is vested by the Constitution; and a The Constitutional Phovisions. 233 mode of selection which gives no room for the exercise of that judg- ment and will is inadmissible. Opinion of A. T. Akerman, Attorney- General of the United States, dated August 31, 1871; reported in Sixth Annual Report of the New York State Civil Service Commission, 1888, p. 278. Article V, Section 9 to be Construed in Connection with Article X, Section 2 — Bule Bequiring Appointment of the Highest is Un- constitutional. — Section 9 of article V of the Constitution, which pro- vides: " Appointments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and vil- lages, shall fee made according to merit and fitness, to be ascertained, so far as practicable, by examinations which, so far as practicable, shall be competitive," is limited but not abrogated by section 2 of article X of the Constitution of the State of New York, providing that " all city, town and village ofiicers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or ap- pointed by such authorities thereof as the Legislature shall designate for that pvuTpose." The laws passed pursuant thereto must be given full force and effect, except so far as they are necessarily limited by the latter. In construing the two it is apparent that a law or rule limit- ing appointments to the person highest upon the list is unconsititu- tional. People ex rel. Balcom v. Mosher, 45 App. Div. 68; afCd. in 163 N.'Y. 32. Much of the language and reasoning of Judge Martin in the above case seems to negative the idea that where a constitutional right of appointment exists, the appointing officer can be limited t» designating one person, notwithstanding the one person may be a veteran. The general trend of his argument is that the power of ap- pointment necessitates some range of choice. There was no express holding in this case that the highest standing veteran did not have an absolute right of appointment over all others not veterans, nor that where only one veteran was upon the list the names of some other eligibles (non- veterans) must be certified to the appointing officer in order that he might exercise his constitutional power of appoint- ment, — his constitutional power of selection, — yet that would seem to follow from the reasoning of the judge. There are, however, con- trary inferences to be drawn from the opinion of the Appellate Division in the case, which decision was referred to approvingly by Judge Martin. (See paragraphs under section 20.) Our own opinion is that the constitutional preference given to veterans is a constitutional limitation upon the power of appointment; that the preference is not to be lost because there is only one eligible veteran; and that the preference is a preference in appointment, not merely in certification. It should also be noted in considering the Balcom case that the decislbn related to city officials and not to State officials. It was held that a law limiting appointing officers in cities to the designation of the one person 234 The Constitutional Peotisions. ' whom civil service commissioners declared to be the highest upon the eligible list v?as unconstitutional, because it violated the constitutional provision that subordinate city officers should be chosen by superior city officers, or by the inhabitants of the city, yet the general trend of the argument of Judge Martin, who wrote the opinion of the Court of Appeals, and more particularly of Judge Herricli who wrote the opinion of the Appellate Division, leads to the conclusion that when- ever any officer, State or municipal, has, by the Constitution, a right of appointment he has a right of selection, which may be limited, per- haps to three persons (possibly even to two) but cannot be destroyed by compelling him to designate one particular person. Compare cases cited under section 13. Limitation to a Choice from the Three Highest. — Is the rule that permits the appointing officer to exercise his discretion among the three persons standing highest upon the list constitutional? If there were no precedents, and if there had not been years of adherence to such a policy, and were there in the Constitution, no provision recog- ' nizing or requiring competitive examinations as a test for appointment to the civil service, we should have said, the limitation to three per- sons was so great a restriction of the power of appointment that it was unconstitutional. But however the case may s'..and with the Federal service, in the State service, the limitation to three would seem to be proper, for here we have a constitutional provision requiring competitive examinations whenever practicable, and " competition " must be construed as requiring something more than mere " qualifica- tion " examinations; furthermore the constitutional provision was adopted with the idea of embodying into the organic law of the State a system of civil service reform which had then been sanctioned by statute for eleven years, and which had always required the appoint- ment of one of the three highest. This limitation or restriction was unquestionably known to, and in the minds of the framers of the Constitution. Judge Martin's opinion in the Balcom case, 163 N. Y. 32, substantially recognizes the constitutionality of the restriction of the appointing officer to a choice from the first three names. Effect of Earlier Civil Service Acts Upon Officers Having a Con- stitutional Power of Appointment and Bemoval. — Prior to the adop- tion of the State Constitution of 1894, with its civil service section, an honorably discharged soldier applied for a mandamus to compel the respondent to reappoint him a keeper in the State prison at Auburn. Held, that under the provisions of the State Constitution, then in existence, as amended in 1873 (art. V, § 4), conferring upon the Super- intendent of State Prisons the power to select and appoint his sub- ordinates, that officer had the exclusive power to determine as to the propriety of appointments and removals, and that chapter 464 of the Laws of 1887, giving a preference to honorably discharged soldiers and sailors, in appointment and employment in the civil service of the State, and designating a particular class from which the head of any department must select his subordinates, was unconstitutional In that The Constitutional Provisions. 335 It restricted the powers vested in the Superintendent of State Prisons, under the provision of the Constitution referred to. People ex rel. rrravis v. Durston, 3 N. Y. Supp. 522. Article V, section 3 of the former State Constitution provided that " all persons employed in the care and management of the canals, except collectors of tolls and those in the department of the State Engineer and Surveyor, shall be appointed by the Superintendent of Public Works, subject to suspension or removal by him." In that Constitution there was no provision recognizing the system of appointments to positions, based upon merit and fitness ascertained hy competitive examination. It was, therefore, held in Killeen v. Angle, 109 N. Y. 564, that it was the intention of the old Constitution to confer upon the Superintendent of Public Works the power to select and appoint his subordinates " subject only to his sense of duty and the obligations of his oath of office," and that it plainly intended " to leave to the superintendent, exclusively, the determination of the pro- priety of such appointments, and the sufficiency of the qualifications possessed by proposed appointees; and that the provisions of chapter 354 of the Laws of 1883, and of the rules and regulations adopted by the Governor and Civil Service Commission, were limitations and re- strictions upon such power of appointment by the superintendent, which the Legislature had no power to impose, and that, therefore, his subordinates " did not come under the operation of the act creating the Civil Service Commission." The principle of that decision applied as well to subordinates of the Superintendent of State Prisons, and of the agents and wardens of each prison, and to the clerks of such prisons to be appointed by the Comptroller; inasmuch as by the Con- Btitution they were given the power of appointment. Opinion of Herrick, J., in People ex rel. McClelland v. Roberts, 13 Misc. 448. Effect on Power of Appointment of New Constitutional Provision. — The new Constitution, adopted in 1894, contains the same provision as to the appointment of subordinates by the Superintendent of Public Works, as did the old Constitution. (See § 3, art. V.) But it also con- tains an entirely new section, being the civil service section, section 9 of article V. Opinion of Herrick, J., in People ex rel. McClelland v. Roberts, 13 Misc. 448. The civil service section of the Constitution of 1894 (§ 9, art. V), has superseded and abrogated the decision in People ex rel. Killeen v. Angle, 109 N. Y. 564, to the effect that the Legislature cannot restrict or qualify the power of appointment and removal vested by the Con- stitution in the Superintendent of Public Works. Opinion of O'Brien, J., in People ex rel. McClelland v. Roberts, 148 N. Y. 360. In reading section 3 of article V of the new Constitution of 1894, in connection with section 9 of same article, and considering the language used, the history and condition of the law as it was under the old Constitution, taken in connection with the proceedings in the con- stitutional convention, it is manifest that it was the plain intent of the framers of the Constitution, and of the people who adopted it, that all 236 The Constitutional Pkotisions. appointments in the civil service of the State should be made accord- ing to merit, to be ascertained, so far as practicable, by examination, and that they intended to extend that principle so as to include the subordinates and appointees of the Superintendents of Public Works and of State Prisons; and that the power of appointment conferred upon the Superintendent of Public Works by section 3 was intended to be subject to the principles and limitations contained in section 9. Opinion of Herrick, J., in People ex rel. McClelland v. Roberts, 13 Misc. 448; affd., 148 N. Y. 360. The civil service section of the Constitution providing that " appoint- ments and promotions in the civil service of the State, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations which, so far as practicable, shall be competitive," must be construed in connection with section 2 of article X, providing that " all city, town and village officers, whose election or appointment ie not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or ap- pointed by such authorities thereof as the Legislature shall designate for that purpose." As thus construed, the former section does not take away such power of appointment or change the oflBcers or bodies who are to make the appointments, but relates only to the qualifications which appointees shall have to justify their appointment under said section 2, and the manner in which they shall be ascertained. People ex rel. Balcom v. Mosher et al., 163 N. Y. 32. Extent and Nature of Veterans' Preference. — This section of the Constitution, read according to its letter and spirit, contemplates that In all examinations, competitive and non-competitive, the veterans of the Civil War have no preference over other citizens of the State, but when, as a result of those examinations, a list is made up from which appointments and promotions can be made, consisting of those whose merit and fitness have been duly ascertained, then the veteran is entitled to preference without regard to his standing on that list. Opinion of Bartlett, J., in Matter of Keymer, 148 N. Y. 219. Constitutional Preference is Exclusive of all Others. — The effect of the constitutional provision is that the whole civil service of the State has been brought under the operation of the Civil Service Laws. Veteran soldiers and sailors have the preference that the Constitution gives them. This preference is exclusive of all others. The Legis- lature can give them no more. If, therefore, a law applicable only to veterans creates any other or further preference in appointment or promotion, it is beyond the power of the Legislature to grant, and is void. Opinion of Brown, P. J., in Matter of Keymer, 89 Hun, 292. No Preference Until After Examinations. — While it was intended by article V, section 9 of the Constitution, to give veterans a preference, it was not intended that they should be relieved from demonstrating their fitness for official positions by submitting to an examination, but The Constitutional Pkotisions. 337 simply to give them a preference over tliose not soldiers, who had also had their fitness tested by examination. * * * The framers of the Constitution contemplated only that upon the list, made up after an examination of the applicants, a soldier applicant should have a preference over the non-soldier who obtained a place ■upon the list. Opinion of Herrick, J., in Matter of Sweeley, 12 Misc. 175. Practicability not Determinable by Amount of Compensation. — Chapter 717 of the Laws of 1894, being a law which exempted honor- ably discharged soldiers and sailors from the operations of the Civil Service Law of the State, and from being examined to test their fitness, in cases where they are applicants for positions, the pay of which did not exceed four dollars per day, was in conflict with the provisions of the section of the Constitution in question, and re- pugnant to its principles and was, therefore, abrogated by it. Opinion of Herrick, ,T., in Matter of Sweeley, 12 Misc. 175. Compare cases cited under section 12 (4). Bight to Sefuse to Certify a Veteran More than Three Times. — Under chapter 29, section 4, Laws of 1886, giving veterans a preference in appointment, and prior to the constitutional provisions upon the subject, adopted in 1894, and pursuant to civil service rule 19, which read: " No person on any register (eligible list) shall be certified more than three times to the same officer, except upon the request of such officer," it was declared by the Attorney-General to be his opinion that an honorably discharged soldier was not entitled to a certification for appointment to the same appointing officer more than three times, except upon request of such officer. Opinion of T. B. Hancock, At- torney-General of New York, dated January 26, 1894; reported in New York Civil Service Report, 1894, Vol. 12, p. 113. This would seem to be Inconsistent with the present constitutional provision. The undoubted purpose of the Veteran Law of 1886 was to give persons who served in the army or navy of the TJnited States a pref- erence over all other applicants desiring a subordinate position in the service of the State, and full force and effect should be given to the law. But it would appear that the provisions of the rule referred to are reasonable and can properly be applied to all cases. It is not the province of the commission to certify for appointment persons who have been repeatedly rejected, or to punish officials who refuse to observe the terms of the statute. Opinion of T. E. Hancock, Attorney- General of New York, dated January 26, 1894; reported in New York Civil Service Report, 1894, Vol. 12, p. 113. Duty of the Iiegislature to Enact Civil Service Laws.— The power to legislate rests in the Legislature, and this power necessarily carries with it the right not only to enact laws, but to change, modify and repeal the same. The civil service statutes furnish no exception to this rule. There exists no power in the courts, or elsewtere, to compel the Legislature to enact laws to provide for the enforcement of this eeetion of the Constitution. Neither is there any power residing in the 238 The Constitutional Fkovisions. courts, or any restriction in tlie Constitution, to prevent the repeal by the Legislature of all statutes relating to the civil service of the State. Per Curiam in Chittenden v. Wurster, 14 App. Div. 483; reversed on other grounds. Necessity of New Legislation to Carry out Constitutional Provis- ions.— The Constitution of 1894 was enacted in contemplation of the then existing civil service statutes, but it does not follow that those statutes, in all their provisions, were conclusive as to the methods in which appointments or promotions in the civil service were to be made. So far as under those statutes the classification of appointments to office was discretionary, the provisions of the Constitution superseded the statutes, and required that all appointments should be made by competitive examination so far as practicable, even though the statute remained unchanged. Per Curiam in Chittenden v. Wurster, 14 App. Div. 483; reversed on other grounds. This question was exhaustively considered in the case of People ex rel. McClelland v. Roberts. The opinion of Justice Herrick, who wrote the opinion at the Trial Term, 13 Misc. 448, was approved and adopted by the Appellate Division as its own, 91 Hun, 101, and the judgment was affirmed in the Court of Appeals, 148 N. Y. 360, JTudge O'Brien writing the pre- vailing opinion. He said: "It is evident from the language of the new provision of the Constitution and from the debates in the con- vention which followed its introduction into that body, that it was framed and adopted with reference to existing laws, which were In- tended to give it immediate practical operation. ♦ • • The mandate to the Legislature to enact laws to provide for the enforcement of the section does not, in any degree, conflict with this view. That was a prudent and proper, though, perhaps, unnecessary, precaution. But It affords no ground for the Inference that the people Intended to Ignore the aid and utility of existing laws to give immediate practical effect to the principle, or that they were content to wait for the reform until the Legislature should make new regulations on the subject. It was the Intention to put all the new provisions of the Constitution Into operation through the instrumentality of such laws as were then In force, so far as practicable, and if, in practice, they were found to be in any respect Insufficient for that purpose, they were to be replaced or supplemented by new ones. Bight of Legislature to Provide for Separate Systems of Civil Service in Different Cities. — In granting a municipal charter contajn- Ing provisions permitting a different system of civil service in one city than in all others, the Legislature does not exceed its power or violate any constitutional prohibition. It is within the province of the Legis- lature to confer such a right upon a municipality. Opinion of O'Brien, J., In People ex rel. Leet v. Keller, 31 App. Div. 248; reversed on an- other point, namely, as to whether or not the Legislature had exercised this power in the case of New York city. Negative Effect of Constitution in Absence of all Civil Service Iiaws.— The principle that all appointments in the civil service must The Constitutional Pkoyisions. 339 te made according to merit and fitness, to be ascertained by com- petitive examinations, is expressed in such broad and imperative language that in some respects it must be regarded as beyond the control of the Legislature, and secure from any mere statutory changes. If the Legislature should repeal all the statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution vyould still remain, and would so far execute itself as to require the courts, in a proper case, to pronounce appointments made without compliance with its requirements illegal. Opinion of O'Brien, J., in People ex rel. McClelland v. Roberts, 148 N. Y. 360. The provisions of section 9, article V of the Constitution relative to the civil service, are self-executing. This is not a provision intended to impose on the various officers of the State the duty of making ap- pointments and promotions in the civil service. The section is simply a limitation upon the method in which such appointments or pro- motions shall be made. Everything done in violation of it is void, even if no statutes or rules are made for the purpose of carrying it into effect. Per Curiam in Chittenden v. Wurster, 14 App. Div. 483; reversed on other grounds. While a provision of the Constitution may need legislation to en- force Its principles and give them affirmative effect, yet, without any legislation, such provision may have a negative force in prohibiting acts in violation of its terms and nullifying statutes repugnant to its principles, and thus, while from lack of legislation its principles can- not be affirmatively enforced, neither on the other hand can those principles be lawfully violated, or any statute violating them be enforced. Opinion of Herrick, J., in Matter of Sweeley, 12 Misc. 175, The civil service section of the Constitution of 1894 is not made non-self-exeeutlng by the clause therein that " laws shall be made to provide for the enforcement of this section." In connection with the constitutional provision (art. I, § 16), that " such acts of the Legis- lature of this State as are now in force shall be and continue the law of the State, subject to such alterations as the Legislature shall make concerning the same," the effect of the civil service section is to bring, all positions in the civil service, not excepted by the statute, within the operation of the Civil Service Act of 1883 and its amendments, without re-enactment. Opinion of O'Brien, J., in People ex rel. Mc- Clelland V. Roberts, 148 N. Y. 360. Constitutionality of Former Statutes. — The civil service statutes, existing at the time the Constitution of 1894 went into effect, with the exception of certain special statutes as to veterans, were in harmony with the provisions of the Constitution. Per Curiam in Chittenden v. Wurster, 14 App. Div. 483; reversed on other grounds. To same effect In re Sweeley, 12 Misc. 175. At the time of the adoption of the Constitution of 1894 there was in force a regular system of civil service machinery adequate to the examination and appointment of persons to the public service in the 240 The Constitutional Peovisions. state and in the cities. Opinion of Goodrich, P. J., in Chittenden v. Wurster, 14 App. Div. 483; reversed on other grounds. The civil service laws enacted prior to the adoption of the Con- stitution of 1894, and in force at that time, became the law of the State, and must, so far as not repugnant to the Constitution, be con- strued as a part of the civil service system which the framers of the Constitution intended to provide. Opinion of Titus, J., in People ex rel. Kittenger v. The Civil Service Commissioners, 20 Misc. 217. Power of Legislature Over Classification. — Probably the Legisla- ture has the power, under section 9, article V of the Constitution, to determine what oflBcers and appointees it is practicable to classify under the civil service, and in what cases it is practicable to ascer- tain the fitness and merits of candidates for positions by examination, still it is not necessary for the Legislature to act in that respect In order to enforce the application of section 9, if, when the Constitution was framed and adopted, a statute was in existence which authorized and directed the Governor of the State to determine what subordinate places in the service of the State it was practicable to classify and subject candidates to for examination. Opinion of Herrick, J., in People ex rel. McClelland v. Roberts, 13 Misc. 448. Compare cases cited under sections 9 and 12 (4). It is quite possible there are offices and positions, by reason of peculiar duties, which experience will demonstrate cannot be filled by competition, and when such a case arises it will be competent for the Legislature to provide for it by an appropriate act disclosing the cir- cumstances which justify the intervention. Opinion of Bartlett, J., in Matter of Keymer. 148 N. Y. 219. Subject to Eeview by the Courts. — As a general proposition It Is in the power of the Legislature to determine with reference to what offices or class of offices examinations or competitive examinations are practicable, but whether a particular statute is a valid exercise of that power is a judicial question. Opinion of Brown, P. J., In Matter of Keymer, 89 Hun, 292. The power of the Legislature is, by section 9 of article V of the Constitution, restricted to the passage of laws for the enforcement of this section. The limit of legislative power is accurately defined, and the validity of every law relating to appointments and promotions in the civil service of the State, or of the municipal corporations thereof, is to be tested by the inquiry whether the statute tends to enforce the provision of the Constitution. If it is apparent that such is not the real object and purpose of a law the courts will interfere and protect the constitutional rights of the people. Opinion of Brown, P. J., in Matter of Keymer, 89 Hun, 292. Looking at the history of the Civil Service Law, the obvious Intent In embodying this merit principle in the Constitution was to restrict the power of the Legislature upon the subject, and to withdraw from Its power of determination, the question whether merit and fitness The Constitutional Pkovisions. 241 .■should thereafter prevail !n appointments to office in the civil service -of the State. It would be difficult to define the extent of the legislative povrer to •declare in what cases examinations or competitive examinations are not to be deemed practicable, but it is certain that laws passed in the >exercise of that power must have some relation to the objects and «nds which the people by adopting the constitutional provision in- tended should prevail in the civil service of the State. Opinion of Brown, P. J., in Matter of Keymer, 89 Hun, 292. Great weight should be given to the determination of the Legis- lature as to the character of a position; that is as to whether or not it is confidential and as to whether or not it is practicable to fill it aa the result of a competitive examination. It, however, cannot override the Constitution and by an enactment make a position confidential which, under a fair and reasonable construction of the Constitution, Is not confidential. Opinion of Haight, J. (dissenting), in People ex rel. iSweet' V. Lyman, 157 N. Y. 388. In People ex rel. McClelland v. Roberts, 148 N. Y. 360, Judge O'Brien says: "The principle that all appointments in the civil service must be made according to merit and fitness, to be ascertained by competi- tive examinations, is expressed in such broad and imperative language that in some respects It must be regarded as beyond the control of the Legislature and secure from any mere statutory changes. If the Legislature should repeal all statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution would still remain, and would so far execute itself as to require the courts, in a proper case, to pronounce appointments made without com- pliance with its requirements illegal." It cannot be doubted that, under the Constitution of 1894, the courts have power to review not only the action of civil service commissions in classifying the civil service, but also acts of the Legislature, in re- spect of appointments without examination. If the power of classifi- cation thus exercised constitutes a violation of the plain provisions of the Constitution, and is hostile to the civil service provisions of the Constitution, it can be reviewed by the courts. Opinion of Goodrich, P. J., in Chittenden v. Wurster, 14 App. Div. 483. Laws passed pursuant to a constitutional limitation that they shall relate to the enforcement or carrying out of a constitutional mandate are always open to judicial review. Opinion of Brown, P. J., in Matter of Keymer, 89 Hun, 292. As to the matters discussed in the four previous paragraphs, com- pare cases cited under sections 8, 9, 12 (4), 20 and 21. Effect of Various Provisions of United States Ckinstitution upon Civil Service Act. — The Civil Service Act of Illinois [which is quite similar to that of New York] is not in contravention of the Constitu- tion of the United States. The principal provision of the Federal •Constitution alleged to be violated by the act was the Fourteenth 16 342 The Constitutional Pkovisions. Amendment, which is as follows: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Counsel for respondent, in the case in which this decision was rendered, claimed that the Fourteenth Amendment was violated by the Civil Service Act in the following respects: First. It was said that the act " abridges the privileges and im- munities of citizens of the United States, in that it renders all citizens who do not apply for oflBce, or for place of employment, ineligible to appointment or for selection therefor, whereas it is the right and privi- lege of every citizen to hold office and serve the public." Second. It was said that the Civil Service Act " deprives a duly elected and qualified officer of the right to select his subordinates, and provide the requisite agencies for performing his official duties, thus abridging the rights, privileges and immunities belonging and guar- anteed by said Constitutions respectively to every citizen thereof." Eeld, Untenable. " It is a mistake to suppose that every citizen has the right to hold office; it is only every citizen having the proper qualifications for the office who has the right to hold such office. The mode of determining whether such qualifications exist, as established by the Civil Service Act, applies to all citizens alike, and, therefore, the rights and privileges of none in that regard are abridged." " Further the right of an elected and qualified officer to select his own subordinates is not a vested or private personal right." Opinion of Magruder, J., in People ex rel. v. Loeffler, 175 111. 585; reported also in Fourth Annual Report Civil Service Commission, City of Chicago, 1898, p. 573. Constitutionality of Illinois Civil Service Act. — The Illinois Civil Service Act is not in violation of section 24 of article V of the Illinois Constitution, which is as follows: " An office is a public position, created by the Constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed. An employment is an agency, for a temporary purpose, which ceases when that purpose is accomplished." Opinion of Ma- gruder, J., in People ex rel. v. Loeffler, 175 111. 585; reported also in Fourth Annual Report, Civil Service Commission, City of Chicago, 1898, p. 573. The Civil Service Act of Illinois is not repugnant to that section of its Constitution which says, that civil officers, shall, before they enter upon the duties of their respective offices, take and subscribe an oath, which is set forth in said section, which section contains also these words: "And no other oath, declaration or test shall be required as a qualification." Opinion of Magruder, J., in The People ex rel. v.. The Constitutional Provisions. 243 loeflaer, 175 111. 585; reported also in Fourth Annual Report, Civil Service Commission, City of Chicago, 1898, p. 573. Former Uev? York Civil Service Act not Repugnant to Former Constitution. — Held, prior to the adoption of the civil service clause in the Constitution that the imposing of a test by means of which to ascertain the qualifications of a candidate for an appointive office, of a nature to enable him to properly and intelligently perform the duties of such office, violates no provision of our Constitution, not even article XII of the [old] Constitution, which provides for the taking of an oath of office by members of the Legislature and all officers, execu- tive and judicial, before they enter on the duties of their respective offices, which oath is therein set forth, and in which it is stated that " no other oath, declaration or test shall be required as a qualification for any office or public trust." Opinion of Peckham, J., in Rogers v. The Common Council of the City of Buffalo, 123 N. Y. 173. ■Constitutionality of TTnited States Civil Service Act.— " When Con- gress by law vests the appointment of inferior officers in the heads of departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, re- strict, and regulate the removal, by such laws as Congress may enact in relation to the officers so appointed. The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Congress, and by such legislation he must be gov- erned not only in making appointments, but in all that is incident thereto." The act of Congress of January 16, 1883, and its supple- ments, establishing what is known as the Civil Service Commission, are not unconstitutional. In re Morris S. Miller, Supreme Court, Dis- trict of Columbia; see Report of New York State Civil Service Com- mission, Vol. 6, p. 251; reported also in Fifteenth Report of the United States Civil Service Commission, 1896-1897, p. 202. THE ORIGINAL CIVIL SERVICE LAW Chaptek 354, Laws of 1883, with Amendments down to Ohaptee 370, Laws of 1899 (the "White Law"), Showing Date of Amendments, etc. Section 1. The governor is autkorized to appoint, by and with the advice and consent of the senate, three persons, not more than two of whom shall be adherents of the same party, as civil service commissioners, and said three commissioners shall constitnte the New York civil service commission. They shall hold no other official place under the state of ISTew York. The governor may remove any commissioner, and any vacancy in the position of commissioner shall be so filled by the gov- ernor, by and with the advice and consent of the senate, as to conform to said conditions for the first selection of commis- sioners. rThe three commissioners shall each receive a salary of two thousand dollars a year. And each of said commission- ers shall be paid his necessary traveling expenses incurred in the discharge of his duty as a commissioner. § 2. It shall be the duty of said commission : First. To aid the governor, as he may request, in preparing . suitable rules for carrying this act into effect; and when said rules shall have been promulgated, it shall be the duty of all officers of the state of l^ew York, in the departments and offices to which any such rules may relate, to aid, in all proper ways, in carrying said rules, and any modification thereof, into effect. Second. And, among other things, said rules shall provide and declare, as nearly as the conditions of good administra- tion will warrant, as follows: 1. For open competitive examinations for testing the fitness of applicants for the public service now classified or to be classi- fied hereunder. Such examinations shall be practical in their 246 The Oeiginal Civil Seevice Statute. character and, so far as may be, shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed. 2. All the offices, places and employments so arranged or to be arranged in classes shall be filled by selections from among those graded highest as the results of such competitive exami- nations. 3. There shall be a period of probation before any absolute appointment or employment aforesaid. 4. Promotion from the lower grades to the higher shall be on the basis of merit and competition. 5. 'No person in the public service is for that reason under any obligation to contribute to any political fund, or to render any political service, and no person shall be removed or other- wise prejudiced for refusing to do so. '6. No person in said service has any right to use his official authority or influence to coerce the political action of any per- son or body. 7. There shall be non-competitive examinations when compe- tition may not be found practical. 8. IN'otice shall be given in writing by the appointing power to said commission of the person selected for appointment or employment from among those who have been examined, of the place of residence of such persons, of the rejection of any such persons after probation, of transfers, resignations and removals, and of the date thereof, and a record of the same shall be kept by said commission. And any necessary exceptions from said eight fundamental provisions of the rules shall be set forth in connection with such rules, and the reasons therefor shall be stated in the annual reports of the commission. Third. Said commission shall, subject to the rules that may be made by the governor, make regulations for, and have con- trol of such examinations, and, through its members or the examiners, it shall supervise and preserve the records of the same; and said commission shall keep minutes of its own pro- ceedings. Fourth. Said commission may make investigations concern- ing the facts, and may report upon all matters touching the enforcement and effect of said rules and regulations, and con- The Oeiginal Citil Sebvice Statute. 347 cerning the action of any examiner or boatd of examiners here- inafter provided for, and its own subordinates, and those in the public service, in respect to the execution of this act ; and,, in the course of such investigations, each commissioner and their secretary shall have power to administer oaths. Fifth. Said commission shall make an annual report to the. governor for transmission to the legislature, showing its own action, the rules and regulations and the exceptions thereto in force, the practical effects thereof and any suggestions it may approve for the more effectual accomplishment of the purposes of this act. § 3. Said commission is authorized to employ a chief ex- aminer, a part of whose duty it shall be, under its direction, to act with the examining board so far as practicable, whether at Albany or elsewhere, and to secure accuracy, uniformity and justice in all their proceedings, which shall be at all times open to him. The chief examiner shall be entitled to receive a sa;l- ary at the rate of three thousand six hundred dollars a year, and he shall be paid his necessary traveling expenses incurred in the discharge of his duty. The commission is authorized to employ a secretary, who may be one of its own number, who shall receive a compensation of one thousand dollars per an- unm,^ and who shall also he paid his necessary traveling ex- penses incurred in the discharge of his duty, and also a person to act as stenographer and copyist, who, shall be entitled to receive a compensation of one thousand dollars a year, or in its discretion, may from time to time employ stenographers and copyists at an expense not to exceed in the aggregate the sum of one thousand dollars a year. The commission may [also engage the services of] appoint a messenger to act also as 1 Matter in Roman type, including the matter in brackets, represents the original act of May 4, 1883 (chap. 354). Matter in brackets is matter in the original act which was struck out by the amendment of chapter 357, Laws 1884, which went into effect May 24, 1884. Mat- ter in italics is new matter inserted by amendment of chapter 857, Laws of 1884. To read the act in its original form read all the matter set in Roman type, including the matter in brackets; but do not read any of the matter in italics. To read the act in its amended form read all the matter, whether set in Roman or italics, except the matter in brackets. 248 The Oeiginal Civil Seetice Statute. clerk, at a salary [of six kundred dollars a year] not exceed- ing nine hundred dollars a year, and may dismiss [the same] him at pleasure. The commission may, at Albany, and in any other part of the state where examinations are to take place, designate and select a suitable number of persons in the official service of the state of Wew York, after consulting the head of the department or office in which such person serves, or in its discretion, persons not in the official service, to be members of boards of examiners, and may at any time substitute any other- person in or out of such service in place of any one so selected. Any person not at the time in the official service of the state, or of any political division thereof, serving as a member of the hoard of examiners, shall he entitled to compensation for every day actually and necessarily spent in the discharge of his duty as examiner at the rate of five dollars a day; hut the aggregate compensation of any such examiner shall not exceed one hun- dred dollars in any year. It shall be the duty of the officers of the state of New York, or of any political division thereof, at any place outside of the city of Albany, where examinations are directed by said rules or by said board to be held, to allow the reasonable use of the public buildings, and to light and heat the same, for holding such examinations, and in all proper ways to facilitate the same. § 4. It shall be the duty of the [secretary of state] trustees of public buildings, designated by chapter three hundred and forty^ine of the laws of eighteen hundred and eighty-three, to cause suitable and convenient rooms and accommodations to be assigned or provided, and to be furnished, heated and lighted, at the city of Albany, for carrying on the work of said commission and said examinations, and [to cause] said com- mission may order the necessary stationery, postage stamps, an official seal and other articles to be supplied, and the necessary printing to be done for [said commission] its official use. And the cost and expense thereof, and the several salaries, compen- sations and necessary expenses [hereinbefore mentioned] of the commission, upon the same being stated in detail and veri- fied by affidavits as the comptroller may direct, shall be paid monthly from any money in the treasury not otherwise appro~ priated. (^^ee note to section 3.) The Obiginal Civil S'eeticb Statute. 249 § 5. Any commissioner, examiner, copyist or messenger herein mentioned, or any other person who shall -wilfully and corruptly, by himself or in co-operation with one or more per- sons, defeat, deceive or obstruct any person in respect of his or her right of examination according to any^ [such] rules or regulations prescribed pursuant to the provisions of this act, or who shall wilfully, corruptly and falsely mark, grade, esti- mate or report upon the examination or proper standing of any person examined [hereunder] pursuant to the provisions of this act, or aid in so doing, or who shall wilfully and corruptly make any false representations ccmcerning the same, or con- cerning the person examined, or who shall wilfully and cor- ruptly furnish to any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any person so examined, or to be examined, [be- ing appointed, employed or promoted] shall for each offense be deemed guilty of a misdemeanor [and upon conviction thereof shall be punished by a fine of not less than one hun- dred dollars, nor more than one thousand dollars, or by impris- onment not less than ten days nor more than one year, or by both such fine and imprisonment.] § 6. Within four months after the expiration of the present session of the legislature, it shall be the duty of the governor to cause to be arranged in classes the several clerks and persons employed or being in the public service, for the purposes of the examination herein provided for, and he shall include in one or more of such classes, so far as practicable, all subordi- nate places, clerks and officers in the public service of the state. § 7. [After the termination of eight months from the ex- piration of the present session of the legislature] No officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be specially exempted 1 In section 5, matter in Roman type, including the matter in brack- ets, represents tlie original act of May 4, 1883. Matter in brackets is matter that was struck out by the amendment of May 29, 1884 (chap. 410), in effect twenty days after passage. Matter in italics was new matter inserted by amendment of May 29, 1884 (chap. 410). 350 The Okiginal Civil Seevice Statute. from such examination, in conformity herewith. Iso elective officer, and no person merely employed as a laborer or work- man, shall be required to be classified hereunder; nor, unless by the direction of the senate, shall any person who has been nominated for confirmation by the senate be required to be classified or to pass an examination.* It shall he the duty of each state officer or hoard of state officers appointing or em- ploying any officer, clerh or other person, in the public service of the state, in either of said classes, forthwith on such appoint- ment 01- employment, to report to the civil service commission the name of such appointee or employee, the title or character of his office or employment, and the date of the commencement of service by virtue thereof; and forthwith, on the termination of such service to report to said commission the fact and date of such termination. It shall he the duty of said commission to keep in its office a complete record, open to public inspection at all reasonable hours, of all officers, clerics and other persons in the public service of the state, in either of said classes, ap- pointed or employed therein in pursuance of law, and of the rules and regulations made in pursuance of law, showing in each case the title or character of the office or employment, and the date of the commencement of service by virtue thereof;- and also a complete record, so far as practicable, in like manner, of all officers, clerks or other persons in the public service of the state, in either of said classes, appointed or employed therein in violation of law, or of the rules and regulations made in pursuance of law. It shall he the duty of the said commis- sion to certify to the comptroller the name of every officer, clerk or other person in the public service of the state, in either of said classes, appointed or employed therein in pursuance of law and of the rules and regulations made in pursuance of law, stating in each case the title or character of the office or em- ployment, and the date of the commencement of service by vir- tue thereof; and, in like manner, to certify to the comptroller, the name of each officer, clerk or other person in the public 1 In section 7, matter in Roman type, including that in brackets, is the provision of the original act. Matter in brackets was struck out, and matter in italics was inserted by the amendment made by chap- ter 681, Laws of 1894, passed May 12, 1894, and took effect imme- diately. The Original Civil Seevice Statttte. 251 service of the state, in either of the said classes, appointed or employed therein in violation of law or of the rules or regu- lations made in pursuance of law; and to certify to the comp- troller, in like manner, every change occurring in any such office or employment forthwith, on the occurrence of the change. It shall be unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerh or other person in the public service of the state, in either of said classes, who is not so certified as having been appointed or employed in pursuance of law and of the rules and regular tions made in pursuance of law. Any officer, clerh or other person entitled to be certified by the said commission to the comptroller as having been appointed or employed in pursu- ance of law and of the rules and regulations made in pursu- ance of law, and refused such certificate may maintain a pro- ceeding by mandamus to compel the commission to issue such certificate. In each city of the state in which rules and regu- lations have been ad,opted under the provisions of this act, any officer of such city whose duty it is to sign or countersign war- rants, shall not draw, sign or issue, or authorize the drawing, signing or issuing, of any warrant on the treasurer or other disbursing officer of such city for the payment of salary to any person in its service whose appointment has not been made in pursuance of this act, and the rules in force thereunder. Any sums paid contrary to the provisions of this section may be; recovered from any officer signing or countersigning warrants for the payment of the same, and from the sureties on his offi- cial bond, in an action in the supreme court of the state, mairir iained by a citizen resident therein, who is assessed for and is liable to pay, or within one year before the commencement of the action, has paid a tax therein. All moneys recovered in any action brought under the provisions of this section must, when collected, be paid into the treasury of the city. § 8. The mayor of each city in this state* [having a popula- tion of fifty thousand or over as shoAvn by the last census] is 1 In section 8, matter in Roman type, including matter in brackets, is the provision of the original act of 1883. Matter in brackets was struck out, and matter in italics was inserted by the amendment, chapter 410, Laws of 1884, passed May 29, 1884, to take effect in the 252 The Oeiginal Citil Sehvice Statute. authorised and is hereby directed to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he [may] shall, from time to time, employ suitable persons to conduct such inquiries and make examinations, and [may] shall prescribe their duties and es- tablish regulations for the conduct of [the] persons who may receive appointments in the said service. [Said regulations, however, shall not extend to any elective officer, or to those in or seeking to enter said service under the police, health, fire, educational, or law department of any city, nor to any officer having immediate custody of public moneys for the safe-keep- ing of which any head of an office has given bonds and is there- under responsible, nor shall any regulation be incompatible with any existing law as to entrance to said service. And each of the boards (or the officer, as the case may be, at the head of each said department) is hereby given, in respect to those seeking to enter or serving in the same, the same kind and measure of authority which is hereby conferred upon the mayor in regard to certain other officials, which authority shall be exercised by the said boards or officers after consultation with the mayor.] And the regulations so to he prescribed shall, among other things, provide and declare as in the second sub- division of the second section of this act is provided and de- clared in reference to regulations for admission to the civil ser- vice of the state. Within two months after the passage of this act it shall he the duty of each of said mayors in and by such regulations to cause to be arranged in classes the several clerks and persons employed or being in the public service of the city of which he is mayor, and he shall include in one or more of such classes, so far as practicable for the purposes of the exam- ination herein provided for, all subordinate clerks and officers in the public service of the said city to whom his power under this act extends. After the termination of three months from the passage of this act no officer or clerk shall he appointed, and usual statutory period. As amended In 1884, it continued to be the law until chapter 186 of the Laws of 1898 went Into effect. See below. The Oeiginal Civil Service Statute. 353 no person shall be admitted to or he •promoted in either of the said classes now existing or that may he arranged hereunder pursuant to said rules, until he has passed the examination, or is shown to he exempted from such examination, in conformity with such regulations. Such regulations hereinafter prescribed and established, and any subsequent modification thereof, shall take effect upon the approval of the New York civil service commission. Officers elected by the people, and the subordi- nates of any such officer, for ivhose errors or violation of duty said officer is financially responsible, and the head or heads of any department of the city government, and persons employed in or who seek to enter the public service under the educational departments of any city, and any subordinate officer who, by virtue of his office, has personal custody of public moneys or public securities, for the safe-keeping of which the head of an office is under official bonds, shall not be subject to the regula- tions prescribed pursuant to this section, nor shall any regular tions contravene an existing statute relating to entrance to said service. It shall be tlie duty of all those in the official service of any [said] such city to conform to and comply with any regulations made pursuant to this act, and to aid and facilitate in all reasonable and proper ways the enforcement of all regu- lations and the holding of all examinations which may be re- quired under the authority conferred by this section. But [no] the authority [in] by this section conferred shall not be so exercised as to take from any policeman or fireman any right or benefit [now] conferred by law, or existing under any law- ful regulation of the department in which he serves. And all examinations herein authorized shall be public, and all regula- tions shall be published, and, with all the proceedings and papers connected with said examinations, shall be at all times subject to the inspection of said commission and its agents; and said commission shall set forth in its reports the character and practical effects of such examinations, together with its views as to the improvement and extension of the same, and also copies of all regulations made under the authority hereby conferred. (Chapter 410, Laws of 1884, entitled an act to amend chap- ter 354 of the Laws of 1883, etc., not only made the amend- ments indicated in this copy of the Civil Service Law by brack- 254 The Original Civil Service Statute. , ets and italics, but also contained among other things a section, which has particular bearing upon section 8 of the original act and which is therefore inserted in this place. " § 3. Where before the passage of this act the mayor of any city herein mentioned has prescribed regulations pursuant to the power given him by the act hereby amended, such regula- tions shall be deemed to be established and prescribed and to be operative as if established, prescribed, and approved under the provisions of the said act as hereby amended; and the ex- aminers who before the passage of this act have by the mayor of any such city been appointed or designated under the pro- visions of the said act, shall he deemed to be appointed, and to have all the powers and duties which they would have if ap- pointed under the provisions of the said act as hereby amended.") There was a further amendment to the foregoing made by Laws of 1898, chapter 186 (became a law March 31, 1898). It amended section 8 of the original law so that it read as follows : § 8. The mayor of each city in this state shall appoint and employ suitable persons to prescribe, amend and enforce regula- tions for appointments to and promotions in the civil service of such city, and for classifications and examinations therein; and for the registration and selection of laborers for employ- ment therein, not inconsistent with the constitution and the provisions of this act. The regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided and de- clared in reference to regulations for admission to the civil ser- vice of the state. Within two months after the passage of this act, it shall be the duty of each of said mayors in and by such regulations to cause to be arranged in classes the several clerhs and persons employed or being in the public service of the city of which he is mayor, and there shall be included in one or more of such classes, so far as practicable, for the purposes of the examination herein provided for, all subordinate clerks and officers in the pvhlic service of the said city to whom his power under this act extends. After the termination of three months from the passage of this act no officer or cleric shall be ap~ , The Okiginal Civil Sbkvicb Statute. 25& pointed^ and no person shall he admitted to or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed the ex- amination, or is shown to be exempted from such examination, in conformity with such regulations. Such regulations herein- prescribed and established, and all regulations now existing for appointment and promotion in the civil service of said city and any subsequent modification thereof, shall take effect only upon the approval of the mayor of the city and of the New- York civil service commission. Officers elected by the people, and the head or heads of any department of the city govern- ment, and persons employed in or who seek to enter the public service as principals or teachers under the educational depart- ments of any city, and any subordinate officer who, by virtue of his office, has personal custody of public moneys or public securities, for the safekeeping of which the head of an office is under official bonds, shall not be subject to the regulations- prescribed pursvunt to this section, nor shall any regulations contravene an existing statute relating to entrance to said ser- vice. It shall be the duty of all those in the official service of any such city to conform to and comply with any regulations made pursuant to this act, and to aid and facilitate in all rea- sonable and proper ways the enforcement of all regulations and the holding of all examinations which may be required under the authority conferred by this section. But the authority by this section conferred shall not be so exercised as to take from any policeman or fireman any right or benefit conferred by law, or existing under any lawful regulation of the department in which he serves. And all examinations herein authorized shall be public, and all regulations shall be published, and, with all the proceedings and papers connected with said examinations, shall he at all times subject to the inspection of said commission and its agents; and said commission shall set forth in its re- ports the character and practical effects of such examinations, together with its views as to the improvement and extension of the same, and also copies of all regulations made under the aur thority hereby conferred. § 9. 'No recommendation of any person who shall apply for office or place imder the provisions of this act which may be 256 The Obiginal Civil Seevice Statute. given by any senator or member of assembly, or officer con- firmed by the senate, or judge of any court, except as to the character or residence of the applicant, shall be received or considered by any person concerned in making any examina- tion or appointment under this act. [§ 10.^ 'No person shall directly or indirectly solicit or re- ceive, or be in any manner concerned in soliciting or receiving any assessment, subscription, contribution, promise or pledge, for any political purpose whatever, from any officer or from any person receiving, or entitled to receive, a salary from the state, or from any county, city, town, village or political divi- sion within the state, or fees for the discharge of any public duty, nor from any member of any public police department, or fire or other department within this state, or any of the political divisions thereof, nor from any person officially con- nected with the system of public instruction in this state, or in any of the political divisions thereof.] § 11. No officer, agent, clerk or employee under the govern- ment of the state of New York or any political division thereof shall, directly or indirectly, use his authority or official influ- ence to compel or induce any other officer, clerk, agent or em- ployee under said government, or any political division thereof, to pay or promise to pay any political assessment. Every said officer, agent or clerk, who may have charge or control in any building, office or room occupied for any purpose of said gov- ernment, or any said division thereof, is hereby authorized to prohibit the entry of any person, and he shall not consent that any person enter the same for the purpose of therein making, collecting, receiving or giving notice of any political assess- ment; and no person shall enter or remain in any said office, building or room, or send or direct any letter or other writing thereto, for the purpose of giving notice of, demanding or col- lecting, nor shall any person therein give notice of, demand, collect or receive any such assessment; and no person shall pre- pare or make out, or take any part in preparing or making out, 1 Section 10 of the original act of 1883 was repealed by section 7 of chapter 357, Laws of 1884. Compare, however, section 11 of original act and amendments thereto. The Oeiginal Civil Sebvice Statute. 257 any political assessment, ^subscription or contribution with the intent that the same shall be sent or presented to or collected of any officer, agent or employee, subject to the provisions of this act, under the government of the state of ITew York, or that of any political division thereof, and no person shall know- ingly send or present any political assessment [to] subscrip- tion or contribution to or request its payment of any said offi- cer, agent or employee. § 12. Any person who shall be guilty of violating any pro- vision of the ^[two previous sections] last section shall be deemed guilty of a misdemeanor, and shall on convictioil thereof be punished by a fine not less than fifty dollars and not ■exceeding one thousand dollars, or by imprisonment for a term not exceeding six months, or by both such fine and imprison- ment in the discretion of the court. § 13. No recommendation or question under the authority of this act shall relate to the political opinions or affiliations of any person whatever, ^and if a person holding a position subject to co>mpetitive examination in the civil service of the state or of a city shall be removed or reduced the reasons therefor shall be stated in writing and filed with the head of the department cr other appointing officer, and the person so removed or re- duced shall have an opportunity to make an explanation. § 14. Whoever, while holding any public office, or in nomina- tion for, or while seeking a nomination or appointment for any public office, shall corruptly use or promise to use, whether directly or indirectly, any official authority or influence (whether then possessed or merely anticipated) in the way of conferring upon any person ; or in order to secure or aid any person in securing any office or public employment, or any 1 In this section, the matter In Roman type, including matter in brackets, is the provision of the original act of 1883. Matter in brack- ets was struck out, and matter in italics was inserted by chapter 357, Laws of 1884, passed May 24, 1884, to take effect immediately. 2 See foot-note to section 11. 3 The matter in section 13 that is in italics was added by Laws of 1898, chapter 186, and became a law March 31, 1898. Matter in Roman type was the provision of the original Civil Service Law, viz.: Laws of 1883, chapter 354. 17 258 The Oeiginal Civil Sehvice Statute. nomination, confirmation, promotion or increase of salary, upon the consideration or condition that the vote or political influence or action of the last-named person, or any other, shall be given or used in behalf of any candidate, officer or party, or upon any other corrupt condition or consideration, shall be deemed guilty of bribery or an attempt at bribery. And who- ever, being a public officer, or having or claiming to have any authority or influence for or effecting the nomination, public employment, confirmation, promotion, removal or increase or decrease of salary of any public officer, shall corruptly use, or promise, or threaten to use any such authority or influence, directly or indirectly, in order to coerce or persuade the vote or political action of any citizen, or the removal, discharge or pro- motion of any officer or public employee, or upon any other corrupt consideration, shall also be guilty of bribery or of an attempt at bribery. And every person found guilty of such bribery or an attempt to commit the same, as aforesaid, shall, upon conviction thereof, be liable to be punished by a fine of' not less than one hundred dollars nor more than three thou- sand dollars, or to be imprisoned not less than ten days nor more than two years, or to both siaid flne and said imprison- ment in the discretion of the court. The phrase " public offi- cer " shall be held to include all public officials in this state, whether paid directly or indirectly from the public treasury of the state, or from that of any political division thereof, or by fees or otherwise ; and the phrase " public employee " shall be held to include every person not being an officer who is paid from any said treasury. § 15. A majority of the members of said board shall consti- tute a quorum, but a less number may adjourn from day to day. Said commission, when organized, shall immediately in- quire into the methods of appointment, removal, terms of ser- vice, duties, compensation and numbers of all clerks, employees or subordinate officers of any nature whatsoever, either of this state or of cities or counties therein having a population ex- ceeding fifty thousand inhabitants, who are not by existing laws appointed by the governor of the state or by the mayor of any city, or elected by the people; and whether the action of political parties or the public acts of official servants are in any wise affected and if so to what degree, by the present methods The Original Civil Sekviob Statute. 359 I of such appointments, tenure of office, removals and compen- sations, and whether the public interest would or would not he advanced by prescribing competitive tests or standards of ap- pointment for any or all of such subordinate public servants, in addition to those who are hereinbefore included, and if so, the nature and extent of such tests or standards; and whether any abuses exist in connection with the existing practices touch- ing said appointment, tenures, compensations or removals that require reform, or that may be abated by legislation or other- wise. Said commission may also further extend its inquiries so far as to enable it to report whether any, and if so, what legislation is expedient, relative to the methods of compensa- tion of all county officers and their subordinates in this state. § 16. Said commission shall have like power to secure by its subpoena, the attendance, and testimony of witnesses, and the production of books and papers, pertinent to the investigations and inquiries hereby [instituted] authorized, to that prescribed in and by chapter three hundred and fifty-three of the laws of eighteen hundred and eighty-two, for the commission thereby constituted in the execution of its duties as in said act last mentioned, ^and witnesses and officers to subpoena and secure the attendance of witnesses before said commission shall be en- titled to the same fees as are allowed witnesses in civil suits in courts of record. Such fees need not he prepaid, hut the comp- troller shall draw his warrant for the payment of the amount thereof, when the same shall have been certified to by the presi- dent of the commission, and duly proved by affidavit or other- wise to the satisfaction of the said comptroller; and all state, county, town, municipal and other officers and their deputies, clerks, subordinates and employees shall afford the said board all reasonable facilities in conducting the inquiries specified in this act, and give inspection to said board of all books, papers and documents belonging, or in any [wise] way appertaining to their respective offices, and [also shall] shall also produce said books and papers, and shall attend and testify [as herein- before provided] when required to do so by said commission. § 17. Said commissioners hereinbefore named, or in case of vacancy from among their number by declination, resignation 1 See foot-note to section 11. 260 The Fokmee "Black" Law. or otherwise, a successor commissioner, to be appointed by the governor, shall qualify by filing with the secretary of state an oath to perform faithfully the duties of such commissioner. Each commissioner shall receive the compensation hereinbefore provided, together with his actual traveling expenses in the dis- charge of his duties as such commissioner, the said salaries and expenses, together with the other necessary expenses of said board, to be approved by the comptroller and thereafter paid out of the treasury of the state, and the sum of fifteen thousand dollars, or so much thereof as may be necessary, is hereby ap- propriated out of any moneys in the state treasury not other- wise appropriated for the purpose stated in this act. SUPPLEMENTAEY STATUTES. Laws of 1884, Chapter 357. [A.n Act to amend chapter three hundred and fifty-four of the laws of eighteen hundred and eighty-three, entitled " An act to regulate and improve the civil service of the state of New York." Sections 1 to 5 amend Laws of 1883, chapter 354, sections 3, 4, 11, 12 and 16, as hereinbefore shown; section 6 makes an appropriation, and section 7 repeals section 10 of the Laws of 1883, chapter 354. § 8. The election officers now in office, and the inspectors of election and poll clerks shall be exempt from examination in accordance with the act hereby amended, or the amendments thereof, and it shall be the duty of the commissioners and mayors of cities so to provide in regulations made under said act. The original civil service law was also vitally affected by chapter 428 of the Laws of 1897, passed during the admin- istration of Governor Black and commonly known as the " Black " law. Laws of 1897, Chapter 428. 'An Act to provide for examinations to ascertain and determine the merit and fitness of persons seeking to enter the civil ser- The Foemee "Black" Law. 361 Trice of the state of New York and the cities thereof, the rat- ings upon such examination and the persons by whom the same shall be conducted. Section 1. In all examinations for appointment and promo- tion in the civil service of the state of New York and the cities thereof, merit and fitness shall be determined as herein provided. The merit of all applicants shall be determined by examina- tion conducted by or under the civil service commissioners or examining board having jurisdiction over the appointment or promotion for which application is made. Upon all examiaa- tions to determine the merit of the applicants no rating higher than fifty per centimi shall be given to any person. Lists con- taining the names and ratings of all applicants found on such examination to be eligible for appointment or promotion for merit so determined shall be made up for certification to the person or persons holding the power of appointment or promo- tion in the manner provided by the rules and r^ulations estab- lished pursuant to section five of this act. The minimum per- centage of rating necessary to entitle an applicant to a place upon such list as eligible for merit shall be determined by the rules and regulations so established. § 2. The fitness of the applicants certified to be eligible for appointment or promotion for merit, shall be determined by examination to be conducted by the person or persons holding the power of appointment or promotion, or by some person or board designated by the person holding such power of appoint- ment or promotion, and the rating on such examination for fit- ness shall not exceed in any case fifty per centum. The rat- ing obtained upon the examination for fitness shall be added by the person or persons holding the power of appointment or promotion to the rating given to each applicant certified to be eligible for merit respectively by the civil service commission- ers or examining board as provided in section one of this act. § 3. Applicants examined as in this act provided shall be preferred for appointment and promotion according to their standing ascertained by adding together the rating for merit and the rating for fitness determined as in this act provided. 363 The Fohmer "Black" Law. § 4. All examinations shall be competitive so far as prac- ticable and shall be practical in their character and shall relate to those matters which shall fairly test the intelligence, com- petency, suitability and character of the applicants to discharge the duties of that service for which they seek to be appointed. The civil service commissioners of the state, with the approval of the governor, shall determine when examinations are not practicable and when competitive examinations are not prac- ticable in cases relating to the civil service of the state. The civil service commissioners or boards of cities, with the approval of the civil service commissioners of the state, shall determine when examinations are not practicable and when competitive examinations are not practicable in cases relating to the civil service of cities. § 5. The civil service commissioners of the state of ISTew York and of the cities of the state are hereby empowered and required to establish rules and regulations to carry this act into effect in their respective jurisdictions, but such rules and regulations shall not go into operation until approved by the governor of the state of New York, where the civil service of the state is affected thereby, and by the civil service commissioners of the state, where the civil service of cities is affected thereby. § 6. Until eligible lists have been prepared pursuant to this act, all existing eligible lists, for appointment or promotion in the civil service of the state, or in any of the cities thereof, made up or created in any other manner than as in this act provided, shall be continued in full force and effect and may be certified to the person or persons holding the power of appointment or promotion; provided, however, that the ratings therein given shall relate exclusively to the merit of the applicants therein named, and shall be revised by the civil service conmiissioners of the state where the same are applicable to the civil service of the state, and by the civil service commissioners or boards of cities, where the same are applicable to cities, on the basis of the rating for merit as determined in section one of this act, and the fitness of such applicants shall then be determined by examination and their standing ascertained and preference in appointment or promotion given according to the provisions of sections two and three of this act. The Foembk "Veteean" Acts. 363 § 7. All acts and parts of acts inconsistent with the pro- visions of this act are hereby repealed. § 8. This act shall not be construed to deprive any person of the right to advancement or promotion where such right to advancement or promotion is now or shall hereafter be given by law, nor of the rights heretofore secured both as to appoint- ment and upon discharge from employment, to honorably dis- charged union soldiers, sailors and marines. § 9. This act shall take effect immediately. [Became a law May 15, 1897; spedfically amd wholly repealed hy chap- ter 370, Laws of 1899, which became a law April 19, 1899. So far as cities were concerned, the above act was in effect ■ repealed by the later inconsistent act, chapter 186, Laws of 1898, which appears under section 8, ante. See 163 N. 7. 23, at 27.] VETEKAIT LAWS. Contemporaneous with the general legislation relating to the civil service of the State were various enactments, the purpose of which was to give a preference of appointment and employ- ment to veteran soldiers and a more secure tenure to veteran soldiers and veteran firemen. Some of this legislation took the form of amendments in the way of additions to the original Civil Service Law itself, while other portions of it were in the form of supplementary, independent enactments, — supplemen- tary to the civil service statute, but independent not only of the civil service statute, but in many instances independent of other veteran acts. So far as these statutes refer to preference of appointment and employment, we can best consider them by tracing them from their two original sources; for all the veteran statutes relating to preference of appointment and employment seem to be either embodied in two statutes, or to be specific amend- ments to one of these two. Taking these up in the chronological order of the passage of these two original veteran statutes, we will show the development of legislation upon this subject un- der the following two divisions : First. — Chapter 312^ Laws of 1884, and amendments thereto. 264 The Fobmbb "Vetebam;" Acts. Second. — Chapter 410, Laws of 1884 (which specifically^ amended the original Civil Service Law, viz., chapter 354, Laws of 1883), and amendments thereto. But beside the legislation giving to veterans a preference of appointment and employment, there has been a course of legis- lation to secure not only to veterans, but to exempt firemen a more certain tenure of office, and to prevent their removal, ex- cept for cause and (in later legislation) only after a hearing upon specific charges of which due notice has been given. This legislation begins with chapter 708 of the Laws of 1887, which related, however, solely to the city of Brooklyn and the county of Kings. This provision was substantially re-enacted in sec- tion 29 of title 22 of chapter 583 of the Laws of 1888, which constituted the revised charter of the city of Brooklyn. The general legislation on this subject may be considered under two divisions: I. That relating to cities and counties. This legislation began with chapter 119, Laws of 1888, and may be considered under that act and acts amendatory thereof. II. That which related to every public department and to all public works of the State, as well as to cities, towns and villages thereof (later extended to counties). This legislation first took form in chapter 716, Laws of 1894, which also re- lated to the veteran's right to a preference of appointment and employment, and was later amended by chapter 821, Laws of 1896. Note. — In People ex rel. Earl v. England, 16 App. Dlv. 97, Judge Cullen, In 1897, writing the opinion, in which all the members of the court concurred, declared that these three acts (chapter 708, Laws of 1887; chapter 119, Laws of 1888, and chapter 716, Laws of 1894), and the acts amendatory of these several acts, were separate and distinct sets of statutory regulations; all three seeming to be co-existing, none repealing the others. The latter two were expressly repealed by the "White Law"; not so the other, the special Brooklyn and Kings County Act. But in so far as that act was re-embodied in the Brook- lyn charter, and in so far as it affected Brooklyn, it is undoubtedly repealed by the Greater New York charter, Brooklyn being merged In New York. ; The Foemeb "Veteban" Acts. 265 I. Chaptee 312, Laws of 1884. (The first " veteran " act; passed May 19, 1884.) 'An Act respecting the employment of honorably discharged union soldiers and sailors in the public service of the state of New York. Section 1. In every public department and upon all public works of the state of Ifew York, honorably discharged union soldiers and sailors shall be preferred for appointment and em- ployment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to dis.qualify them, provided they possess the other requisite qualifications. § 2. This act shall take effect immediately. First amendment to above: Ohaptbe 464, Laws of 1887. An Act to amend chapter three hundred and twelve of the laws of eighteen hundred and eighty-four, entitled "An act re- specting the employment of honorably discharged union sol- diers and sailors in the public service of the state of New York." (Passed May 25, 1887; three-fifths being present.) Section 1. Chapter three hundred and twelve of the laws of eighteen hundred and eighty-four, entitled "An act respecting the employment of honorably discharged union soldiers and sailors in the public service of the state of New York," is hereby amended so as to read as follows: § 1. In every public department and upon all public worlds of the state of New York, ^and of the cities, towns and vil- lages thereof, and also in non-competitive examinations under the civil service laws, rules or regulations of the same wherever they apply, honorably discharged union soldiers and sailors shall be preferred for appointment and employment; age, loss of 1 Matter that was new in this law Is printed In Italics. 266 The Fobmee "Veteean" Acts. limb or other physical impainnent which do^ not, in fact, in- capacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. § 2. All officials or other persons having power of appoint- inent to or employment in the public service as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor. § 3. This act shall take effect immediately. The next amendment to the foregoing was: Chapter Y16, Laws of 1894. An Act to amend chapter three hundred and twelve of the laws of eighteen hundred and eighty-four, entitled "An act re- specting the employment of honorably discharged union sol- diers and sailors in the public service of the state of New York," relating to removals. (Became a laTV May 19, 1894, iwith the approval of the Governor.) Section 1. Section one of chapter three hundred and twelve of the laws of eighteen hundred and eighty-four, entitled "An act respecting the employment of honorably discharged union soldiers and sailors in the public service of the state of New York," as amended by chapter four hundred and sixty-four of the laws of eighteen hundred and eighty-seven, is hereby amended so as to read as follows: § 1. In every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations un- der the civil service rules, laws, or regulations of the same, wherever they apply, honorably discharged union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to dis- The Poemek " Veteban " Acts. 367 charge the duties of the position involved. ^And, in all cases, the person having the power of employment or appointment, unless the statute provides for a definite term, shall have the power of removal only for incompetency and conduct inconsist- ent with the position held hy the employes or appointee; and, in case of such removal, or such refusal to allow the prefer- ence provided for in this act of and for any such honorably discharged union soldier or sailor, or marine, for partisan, po- litical, personal or other cause, except incompetency, and con- duct inconsistent with the position so held, such soldier, sailor or marine, so wrongfully removed, or refused such preference shall have a right of action in any court of competent jurisdic- tion for damages as for an act wrongfully done, in addition to the existing right of mandamus; the hurden of proving such incompetency and inconsistent conduct, as a question of fact, shall he upon the defendant. But the provisions of this act shall not he construed to apply to the position of private secre- tary or deputy of any official or department, or to any other per- son holding a strictly confidential position. § 3. All laws or parts of laws inconsistent with the provisions of this law, are herehy repealed. § 3. This act shall talee effect immediately. Note. — It should be noted that this act relates not only to appoint- ments, but also to removals. As to its not being inconsistent with Laws of 1S88, chapter 119, see note on page 264 referring to case of People ex rel. Earl v. England. The next amendment to the foregoing was : Chapter 821, Laws of 1896. An Act to amend chapter three hundred and twelve of the laws of eighteen hundred and eighty-four, entitled "An act re- specting the employment of honorably discharged union sol- diers and sailors in the public service of the state of New York," relating to removals. (Became a laiw May 21, 1896, with the approval of the Governor.) 1 Matter that was new appears in italics. 268 The Fokmee "Vbtbkan" Acts. Section 1. Section one of chapter three hundred and twelve of the laws of eighteen hundred and eighty-four, entitled "An act respecting the employment of honorably discharged union soldiers and sailors in the public service of the state of New York," as amended by chapter four hundred and sixty-four of the laws of eighteen hundred and eighty-seven, is hereby amended so as to read as follows : § 1. In every public department and upon all public works of the state of New York, and of the cities, ^counties, towns and villages thereof and also in non-competitive examinations under the civil service rules, laws or regulations of the same, wherever they apply, honorably discharged union soldiers, sail- ors and marines shall be preferred for appointment, employ- ment and promotion; age, loss of limb or other physical im- pairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. And no person holding a position by appointment or employment in the state of New Yorh or of the several cities^ counties, towns or villages thereof and receiving a salary or per diem pay from the state or from any of the several cities, coun- ties, towns or villages thereof, luho is an honorably discharged soldier, sailor or marine, having served as such in the union army or navy during the war of the rebellion, and who shall not have served in the confederate army or navy, shall he removed from such position or employment except for in- competency or misconduct shown, after a hearing upon due notice, upon the charge made, and with the right to such em- ployee or appointee, to a review by a writ of certiorari; a re- fusal to allow the preference provided for in this act to any honorably discharged union soldier, sailor or marine, or a re- duction of his compensation intended to bring about a resigna- tion, shall be deemed a misdemeanor, and such honorably dis- charged soldier, sailor or marine shall have a right of action therefor in any court of competent jurisdiction for damages, and also a remedy by mandam^us for righting the wrong. The burden of proving incompetency or misconduct shall be upon. 1 Matter that was new, or that was expressed in language different Ax>m that appearing in chapter 716, LaiwB of 1894, appears in italics. The Fokmer " Veteean " Acts. 269 the pariy edhging the same. But the provisions of this act shall not be construed to apply to the position of private sec- retary or deputy of an official or department or to any other person holding a strictly confidential position. § 2. All acts or parts of acts inconsistent with the provisions of this act are hereby repealed. § 3. This act shall take effect immediately. Note. — Bach and all of the foregoing acts were repealed by chapter 370, Laws of 1899 (the " White " law), which went into effect April 19, 1899. II. The second line of legislation giving to veterans a preference in appointment, employment or promotion, is that which began with Chapteb 410, Laws op 1884. (Passed May 29, 1884.) This was specifically an amendment of the original Civil Service Law, chapter 354, Laws of 1883. Sections one and two amended sections five and eight of the latter law as hereinbe- fore shown. Section three made an amendment which in this book was inserted after section eight of the original act. The fourth section relating to the preferences to be given to veter- ans was as follows : § 4. In grateful recognition of the services, sacrifices and sufferings of persons who served in the army or navy of the United States in the late war, and have been honorably dis- charged therefrom, they shall be preferred for appointment to positions in the civil service of the state and of the cities af- fected by this act over other persons (of equal standing) as as- certained under this act, and the act hereby amended, and the person thus preferred shall not be disqualified from holding any position in said civil service on account of his age nor by reason of any physical disability, provided such disability does not render him incompetent to perform the duties of the posi- tion applied for. 270 The Foemek "Veteean" Acts. This section was amended by chapter 29 of Laws of 1886 (became a law March 1, 1886), so as to read as follows: § 4. In grateful recognition of the services, sacrifices and sufferings of persons who served in the army or navy of the United States in the late war, and have been honorably dis- charged therefrom, ^they shall he certified as such by the com- missioners, hoard or officers authorized to report names for ap- pointment, to the appointing officer, or other appointing power, and shall be preferred for appointment to positions in the civil service of the state, and of the cities affected by this act and the several acts hereby amended, ^over all other persons though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained as provided under this act, and the several acts hereby amended, and the person thus preferred shall not be disqualified from holding any position in said civil service on account of his age, nor by reason of any physical disability, provided such age or disability does not render him incompetent to perform the du- ties of the position applied for. By chapter Yl7, Laws of 1894, there was added to the above a provision which was afterwards held to be repugnant to the revised Constitution, which went into effect January 1, 1895. The provision added was as follows : But the civil service rules and laws of this state shall not apply to such persons residents of this state, who served in the army or navy of the United States in the late war, and have been honorably discharged therefrom, for any position or em- ployment, the compensation of which does not exceed four dol- lars a day, in the public departments and upon all public works of the state of New York, and of the several cities, counties, town and villages thereof. The next amendment was Chaptee 344, Laws of 1895. An Act to amend chapter seven hundred and seventeen of the laws of eighteen hundred and ninety-four, entitled "An act 1 The new or changed matter appears in Italics. The Foemek "Veteean" Acts. 371 to amend chapter twenty-nine of the laws of eighteen hun- dred and eighty-six, entitled 'An act to amend chapter four hundred and ten of the laws of eighteen hundred and eighty- four, entitled An act to amend chapter three hundred and fifty-four of the laws of eighteen hundred and eighty-three, entitled An act to regulate and improve the civil service of the state of New York.-' " (Became a law April 18, 1895, with the approval of the Governor. Passed, three-fifths being present.) The People of the State of New York, represented in Senate and Assembly J do enact as follows: Section 1. Section one of chapter seven hundred and seven- teen of the laws of eighteen hundred and ninety-four, entitled "An act to amend chapter twenty-nine of the laws of eighteen hundred and eighty-six, entitled 'An act to amend chapter four hundred and ten of the laws of eighteen hundred and eighty- four, entitled An act to amend chapter three hundred and fifty- four of the, laws of eighteen hundred and eighty-three, entitled An act to regulate and improve the civil service of the state of IN'ew York,' " is hereby amended so as to read as follows : § 1. Subdivision four of section one of chapter twenty-nine of the laws of eighteen hundred and eighty-six, entitled "An act to amend chapter four hundred and ten of the laws of eigh- teen hundred and eighty-four, entitled 'An act to amend chap- ter three hundred and fifty-four of the laws of eighteen hundred and eighty-three, entitled An act to regulate and improve the civil service of the state of New York,' " is hereby amended so as to read as follows : 4. In grateful recognition of the services, sacrifices and suf- ferings of persons who served in the army or navy of the United States, in the late civil war, and have been honorably discharged therefrom, they shall be certified as such by the commissioners or board of officers, authorized to report names for appointment or promotion to the appointing officer or other appointing power, and when such honorably discharged soldiers and sail- ors of the late civil war are applicants, they shall be preferred for such appointment and promotion, and competitive exam- inations shall not be deemed practicable or necessary in cases 273 The Foemek "Veteean" 'Acts. .where the compensation or other emolument of the office does not exceed, four dollars per day, but the examination shall be such as is calculated only to ascertain the merits and fitness of the applicant for the position for -which he applies, and if found fitted to fiU such position, the applicant's name shall be placed on the eligible list and he shall be certified therefrom. In all examinations for positions where the compensation ex- ceeds four dollars a day, such honorably discharged soldiers and sailors of the late civil war shall be appointed without re- gard to their standing on any list from which such appointment or promotion shall be made, and shall be preferred for appoint- ment to positions in the civil service of the state and of the cit- ies, counties, towns and villages affected by this act, and the several acts hereby amended, over all other persons, though graded lower than others so examined and reported, provided their qualifications and fitness shall have been ascertained as provided under this act, and the several acts hereby amended, and the person thus preferred shall not be disqualified from holding any position in said civil service on account of his age, nor by reason of any physical disability, provided such age or disability does not render him incompetent to perform the du- ties of the position applied for. In all cases where the office or position applied for is a city, village, town or county office or position, the applicant shall have been a resident of the county in which the office or position is located, for at least one year. § 2. Any violation of the provisions of the first section of this act shall be deemed a misdemeanor and punishable by a fine of not less than fifty nor more than two hundred and fifty dollars by any court having competent jurisdiction. § 3. All laws or parts of laws inconsistent with the pro- visions of this act are hereby repealed. § 4. This act shall take effect immediately. Said chapter four hundred and ten of the laws of eighteen hundred and eighty-four was also amended by Laws of 1886, chapter 29, by adding thereto the following: § 5. Whenever it shall appear after a competitive examinor Hon for appointment to a position in the civil service of the The Foembe "Veteean" Acts. 373 state, or of the cities affected by this act, and the several acts hereby amended that more than one such honorably discharged soldier or sailor is qualified to fill the same, the commissioners, board or officer authorized to report names for appointment ■shall certify to the appointing officer, or the appointing power, all of such honorably discharged soldiers or sailors whose quali- fications and fitness have been ascertained as aforesaid, specify- ing their respective grades in such examination; provided, how- ever, that when more than three of such honorably discharged soldiers or sailors shall be so found duly qualified for appoint- ment to such positions, there shall be certified for such appoint- m,ent not more than two names in excess of the number of places to be filled, and in all such cases the appointment shall be made from among those not exceeding three in number, being so cer- tified, who are graded highest, as the result of such examina- tion. Note.— There seems to have been no other amendment or addition to this line of " veteran " legislation. Bach and all of the foregoing acts were repealed by chapter 370, Laws of 1899, in effect April 19, 1899. STATUTES EELATIl^G SOLELY TO THE EEMOYAL OF VETERANS. The special statute referring solely to the city of Brooklyn and the county of Kings is the first division of the legislation restricting the removal of veterans. It appears to have been "the first law upon the subject. It was as follows : Chapter 708, Laws of 1887. An Act providing for the employes of the various departments of the city of Brooklyn and county of Kings. Honorably discharged soldiers and sailors shall not be removed, etc. — Section 1. All persons holding position in the city of Brooklyn, or county of Kings, receiving salary from said city and county treasury, who shall be an honorably discharged sol- dier or sailor of the late war of the rebellion, shall not be re- moved from such position, except for good cause, shovm after 18 274 The Fokmeh "Veteean" Acts. a hearing had, but such person or persons shall hold such posi- tion for and during good behavior. § 2. This act shall take effect immediately. This act was substantially re-enacted in the revised charter of the city of Brooklyn, Laws of 1888, chapter 583, title 22^ section 29. The general legislation upon the subject of the removal of veterans, as has been said on a previous page, is traceable to two original sources. The first general line of legislation upon this subject related to cities and counties, not to the state at large. It began with Chaptee 119, Laws of 1888. 'An Act relating to employes of the various cities and counties of the state. {Appro-ved by the Governor April 10, 1888.) Section 1. No person holding a position by appointment in any city or county of this state,^ receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the union army or navy during the war of the rebellion,^ shall be removed from such position ex- cept for cause shown after a hearing had; but this provision shall not be construed to apply to the position of private secre- tary or chief clerk or deputy of any oflBcial or department, or to any other person holding a confidential relation to the appoint- ing officer. § 2. All laws or part of laws inconsistent with the provisions of this law are hereby repealed. § 3. This act shall take effect immediately. The first amendment to this was Laws of 1890, chapter 67, passed March 24, 1890, which extended the protection from re- The Fohmbr "Veteran" Acts. 276 moval, to veterans of the Mexican war who remained loyal to the union. As amended the section read the same as the fore- going, except after the words " war of the rebellion," where the ^ appears, were inserted the words " or the Mexican war and who shall not have served in the confederate army or navy." The next amendment was Laws of 1892, chapter 5YY (became a law May 14, 1892). It inserted before the words " receiving a salary from such city," where the ^ appears in the foregoing, the words " or who may hereafter be appointed." It also ex- tended the protection of the statute to veteran firemen by adding after the provision in favor of Mexican veterans (above quoted) the words, " or who shall have served the time required by law in the volunteer fire department of any city, town or vil- lage in the state, or who shall have been a member thereof at the time of the disbandment of said volunteer department." The next amendment was that of Laws of 1898, chapter 184, It was as follows : Chapteb 184, Laws of 1898. [An Act to further amend section one of chapter one hundred and nineteen of the laws of eighteen hundred and eighty- eight, entitled "An act relating to employes of the various cities and counties of the state." (Became a law March 31, 1898, ■with the approval of the Governor.) Section 1. Section one of chapter one hundred and nineteen of the laws of eighteen hundred and eighty-five,* entitled "An act relating to employes of the various cities and counties of the state," as amended by chapter five hundred and seventy-seven of the laws of eighteen hundred and ninety-two, is hereby fur- ther amended to read as follows : § 1. 'No person holding a position by appointment in any city or county of this state, or who may be hereafter appointed, receiving a salary from such city or county, who is an honor- ably discharged soldier, sailor or marine, having served as such in the union army or navy during the rebellion, or in the Mex- • So In the original. 276 The Foemee "Veteean" Acts. ican war, and who shall not have served in the confederate army or navy, or who shall have served the term required by law in the volimteer fire department of any city, town or village in the state, or who shall have been a member thereof at the time of the disbandment of said volunteer fire department, shall be re- moved from such position except for cause shown after a hear- ing had ; and in cities of the first class, if the position so held hy any such honorably discharged soldier, sailor or marine or volunteer fireman shall become unnecessary or he abolished for reasons of economy or otherwise, the said honorably discharged soldier, sailor or marine, or volunteer fireman holding the same shall not be discharged from the public service, but shall be transferred to any branch of the said service for duty in such position as he may be fitted to fill, receiving the same compensa- tion therefor. IN'othing in this act shall be construed to apply to the position of private secretary or chief clerk or deputy of any official or department, or to any other person holding a strictly confidential relation to the appointing officer. § 2. This act shall take effect immediately. Each and all of the foregoing acts were repealed by Laws of 1899, chapter 370 (the "White" law), which became a law April 19, 1899. n. The second line of legislation concerning the removal of vet- erans is that which began with Laws of 1894, chapter 716, which also related to veterans' preferential right of appoint- ment. That law was amended by Laws of 1896, chapter 821. These laws we have already considered. See the note on page 264, referring to the decision in People ex rel. Earl v. England, 16 App. Div. 97, as to these several sets of laws, mentioned in I and n, being coexistent. STATE CIVIL SERVICE RULES. STATE OF NEW TOEK: State Civii. Sebvice Commission, Albany, May 18, 1899. In compliance witli the provisions of section 9 of article V of the Constitution, and of chapter 370 of the Laws of 1899 of the State of JSTew York, the State Civil Service Commission hereby prescribes the f oUo-wing rules for the regulation of the classified civil service of the State of ISTew York, to take effect and have the force of law, revoking all other rules to that end, when approved by the Governor. WILLAED A. COBB, SILAS W. BUET, WM. MILLEE COLLIEE, State Civil Service Commissioners. The rules, regulations and classification are all hereip printed as amended up to May 16, 1901. EULE I. DEriNITION OF TeEMS. The several terms hereinafter mentioned, whenever used in these rules or in any regulations thereunder, shall be con- strued as follows: 1. Chapter 370 of the Laws of 1899 shall be known as " The Civil Service Law." 2. The term " Commission " or " State Commission " means the State Civil Service Commission. 3. The term " municipal commission " means the municipal civil service commission of a city. 4. The " civil service " of the State of New York or any of its civil divisions or cities includes all offices and positions of trust or employment in the service of the State or of such civil 378 The State Civil Seevice Eules. division or city, except such offices and positions ia the militia and the military departments as are or may be created mider the provisions of article XI of the Constitution. 5. The " State service " shall include all such offices and positions in the service of the State, or of any of its civil di- visions, except a city. 6. The " city service " shall include such positions in the service of any city. 7. The term " appointing officer " signifies the officer, com- mission, board or body having the power of appointment to subordinate positions in any office, court, department, com- mission, board or institution. 8. The term " Class " refers to the divisions of the classified civil service based upon the distinctive methods of appoint- ment to the positions comprehended therein. 9. The term " Group " refers to the divisions in a class based upon the character of the duties of the positions, -without re- gard to the salaries received. 10. The term " Subdivision " refers to the divisions of posi- tions in a group more specially arranged according to details for the purpose of examinations, identical in whole or in part. 11. The term " Grade " refers to the divisions of any group or subdivision upon the basis of salary or compensation received. • 12. The word " Compensation " shall be construed as the annual salary of the position or its equivalent when stated by the day, week or month, and shall include proper commutation for lodgings and board, or either, when the same are furnished free as a part of such compensation, and such rate of com- mutation shall be fixed by regulation of the Commission. 13. The term " Veterans " refers to honorably discharged soldiers and sailors from the army and navy of the United States, in the late civil war, who are citizens and residents of this State. 14. The terms " laborer " and " unskilled laborer " are used synonymously and shall be construed as applying only to per- sons employed as ordinary laborers, and shall not include mechanics, artisans, tradesmen and other skilled laborers, and no person shall be deemed a " laborer " who receives a com- The State Citil Sbkvice Eules. 379 pensation greater tlian two dollars for each day of actual ser- vice or sixty dollars per montli. 15. The masculine pronoun " he " and its derivatives shall include the feminine pronoun " she " and its derivatives. 16. Whenever in these rules there is a direction that the Commission shall report any matter to the Legislature it shall be construed as referring to the next ensuing annual report of the Commission to the Legislature, as required by law. Ettle II. Geweeal Peovisioits. 1. The violation of any of the provisions of the Civil Service Law or of these rules by any person in the civil service of the State or of any civil division or city thereof shall be considered & good cause for the dismissal of such person from the service. 2. No person in the civil service of the State or of any civil -division or city thereof shall use his official authority or influ- ■ence to coerce the political action of any person or body; or shall dismiss or cause to be dismissed, or make any attempt to procure the dismissal of, or in any manner change the ■official rank or compensation of, any person in such service, because of his political opinions or affiliations. 3. No question in any examination, or form of application or other proceeding by or under the State Commission or any municipal commission or their examiners shall be so framed as to elicit information concerning, nor any other attempt be made to ascertain the political opinions or affiliations of any applicant, competitor or eligible, and all disclosures thereof shall be discountenanced by the Commission and its examiners. And no discrimination shall be exercised, threatened or promised against or in favor of any applicant, competitor or ■eligible, because of his political opinions or affiliations. 4. No recommendation of an applicant, competitor or eligible involving any disclosure of his political opinions or af- filiations shall be received, filed or considered by the Com- mission, by an examining board, or by any nominating or appointing officer. 5. No appointment or selection to or removal from an office or employment within the scope of any rules established un- der the Civil Service Law shall be in any manner affected or influenced by any political opinions or affiliations. 380 The State Citil Sehvice Eulbs. 6. ^o person in the civil service of the State or of any civil division or city thereof shall be obliged to contribute to any political fund or to render any political service; nor shall any such person, directly or indirectly, use his authority or official influence to compel or induce any other person in such service to pay or promise to pay any political assessment, subscription or contribution. 7. In making removals or reductions, or in imposing penal- ties for delinquency or misconduct, in the State service or city service penalties like in character shall be imposed for like offenses and action thereon shall be taken irrespective of the political opinions or affiliations of the offenders. EuLE m. Classification or the State Seevioe. 1. The civil service of the State and of each of its civil divisions shall be divided into the unclassified service and the classified service. 2. The unclassified service shall comprise all elective offices j all offices filled by election or appointment by the Legislature on joint ballot; all persons appointed by name in any statute; all legislative officers and employees; all offices filled by ap- pointment by the Governor, either upon or without confirma- tion by the Senate, except officers and employees in the execu- tive offices; all election officers; the head or heads of any de- partment of the government; and persons employed in or who seek to enter the public service, as superintendents, principals or teachers in a public school or academy or in a State normal school or college. 3. The classified service shall comprise all positions not in- cluded in the unclassified service and shall be arranged in three classes; the exempt class, the competitive class, and the non- competitive class. 4. The classification by or under these rules in the com- petitive class of any position previously exempt from examina- tion or subject to non-competitive examination, shall not be deemed to confer upon the person holding such position at the time of such change in classification any right or privi- lege of transfer or promotion to a position in the competitive class imder these rules. The State Civil Sekticb Eules, 381 5. If at the time of promulgation of these rules there are in any office, department or institution more persons holding any position classified hereby in the exempt class than the number specified in such class by these rules, no further ap- pointments shall be made under such exemption until the num- ber of such persons in the service in said position shall have fallen below the number so specified. EuLB IV. Appointments to and Employment in the Olassi- EiED Service. 1. In pursuance of the provisions of section 9' of Article V of the Constitution and of the Civil Service Law there shall be provided, to ascertain merit and fitness for admission to the classified service, examinations to be made under the general direction of the Commission. 2. No person shall be appointed to or employed in any posi- tion in the classified service of the State or of any city or political division thereof for which rules have been prescribed pursuant to the provisions of the Civil Service Law until he has passed an examination, or is shown to be especially ex- empted from such examination, in accordance with such rules and the provisions of the Civil Service Law. 3. No person shall be appointed or employed under any title not appropriate to the duties to be performed, and no person shall be transferred to or assigned to perform the duties of any position subject to competitive examination, un- less he shall have previously passed an open competitive ex- amination equivalent to that required for such position, or unless he shall have served with fidelity in a similar position for at least three years next prior to the passage of the Civil Service Law. 4. Appointments to positions in the State service the duties of which are confined to a locality outside of Albany county shall so far as practicable be made from residents of the ju- dicial district including such locality. 5. Appointments to positions in the service of any coimty to which the provisions of these rules apply shall, so far as prac- ticable, be made from residents of such county. (As amended June 16, 1900.") 282 The State Civil Service Rules. KuLE V. The Exempt Class. The following positions shall be included in the exempt class: 1. The deputies of principal executive officers authorized by law to act generally for and in place of their priacipals. 2. One secretary of each officer, board and commission au- thorized by law to appoint a secretary. 3. One clerk, and one deputy clerk, if authorised by law, of each court, and one clerk of each elective judicial officer. 4. All unskilled laborers and such skilled laborers as are not included in the competitive class or the non-competitive class. 5. All such other subordinate positions as the Commission may deem it impracticable to fill by competitive or non-com- petitive examinations. No office or position shall be deemed to be in the exempt class unless it is specifically named in this rule, nor shall more than one appointment be made to or under the title of any such office or position, unless a different number is specifically mentioned in this rule, or unless the salary of such office or po- sition is paid wholly from the salary or official emoluments of the head of the office, no part of which is to be returned or ac- counted for as public funds. (As amended Feb. 5, 1901.) POSITIONS IN THE EXEMPT CLASS. State Seevice. In the office of the Governor: The secretary to the Governor. The military secretary. The pardon clerk. The appointment clerk. The deputy appointment clerk. (Classified Jan. 26, 1900.) Three stenographers. (As amended Feb. 5, 1901.) The Governor's special messenger. Counsel. In the office of the Secretary of State: The deputy. The chief clerk. The State Civil Service Eules. 283 The stenographer to the Secretary. The cashier and bookkeeper. Two temporary indexers of patents. (Classified Tebruary Y, 1900.) In the office o± the Comptroller: The deputy. The confidential clerk. The stenographer to the Comptroller. The stenographer to the corporation tax commissioner, New York city. (Classified Nov. 28, 1899.) Two corporation tax commissioners. Tour special corporation tax commissioners. Seven court and trust fund examiners. (Classified Oct. 28, 1899.) Two transfer tax experts. (Classified Oct. 28, 1899.) Ten transfer tax appraisers. (Classified May 18, 1900, amended April 15, 1901.) The chief of the Bureau of Charitable Institutions. One supervisor of buildings and repairs in the Bureau of Charitable Institutions. (Classified Oct. 28, 1899.) The State Prison Lands agent. The custodian of the Saratoga Battle Monument. The custodian of the Lake George Battle Ground (being the New York State Historical Society). (Classified Dec. 4, 1900.) In the office of the Treasurer: The deputy. The chief clerk. The cashier. The assistant cashier. One confidential clerk. (As amended March 15, 1901.)^ In the office of the Attorney-General: Twelve deputies. (As amended Feb. Y, 1900.) Two confidential clerks. (As amended Dec. 4, 1900.)' The stenographer to the Attorney-General. The clerk, Bureau of Taxation of Corporate Tranchisesi (Classified July 31, 1900.) 284 The State Civil Sekvice Eules. Tlie stenographer to deputy assigned as counsel to Superin- tendent of Elections. (Classified July 31, 1900.) The special messenger. In the office of the State Engineer and Surveyor: The deputy. Three division engineers. One financial clerk for each of the division engineers. One recording clerk acting as confidential clerk. (As amended Sept. 24, 1900.) The stenographer to the State Engineer. Eourteen foremen of boring parties to be employed during the survey for barge canal under chap. 411, L. 1900. (Classi- fied May 18, 1900.) In the office of the State Architect: One private secretary. (Classified March 22, 1901.)^ In the Insurance Department: Three deputy superintendents. Eour appraisers. (Classified Oct. 28, 189'9.) The cashier. The confidential clerk. The stenographer to the Superintendent. The stenographer to the first deputy superintendent. In the Banking Department: The deputy superintendent. The confidential clerk. The stenographer to the Superintendent. Three confidential examiners. (Classified Oct. 12, 1900.) In the Department of Public Instruction: The deputy superintendent. The supervisor of institutes. Eive conductors of institutes. Four assistant conductors of institutes. The confidential clerk. The inspector of normal schools. The State Civil Sekvice Eulbs. 385 In each State Prison: The agent and warden. All chaplains. In the Prison Department: The electrician and his assistant for the purposes of electro- cution. One confidential clerk or messenger. (Classified Sept. 24, 1900.) In the Court of Appeals: All positions in the Court of Appeals, including all places to which appointments are made by the clerk of the Court of Appeals. (Classified Jan. 13, 1900.) In the office of the State Eeporter for the Court of Appeals : One assistant State reporter. (Classified June 16, 1900.) In the office of the Railroad Commission: The secretary. The inspector. The examiner. In the office of the Prison Commission: The secretary. In the Department of Excise: The deputy and six special deputy commissioners. (As amended June 16, 1900.) The secretary to the Commissioner. The financial clerk. The cashier in the office of the special deputy commissioner at BuflFalo, Brooklyn, New York and Long Island City. (As amended Feb. 7, 1900.) The assistant cashier in the office of the special deputy com- missioner at New York. Five attorneys. In the Department of Public Works : The deputy superintendent. Three assistant superintendents. 286 The State Civil Seevice Eules. The superintendent of repairs for each section. The disbursing clerk to each section superintendent. The private secretary. The financial clerk. The general inspector. In the office of the State Board of Charities: The secretary. In the office of the Regents of the University: The secretary. The director of examinations. The honorary university examiners. The medical examiners. In the Department of Public Buildings: The superintendent. The deputy superintendent. The paymaster. The custodian of the Senate committee rooms. The custodian of Assembly property. (Classified July 10, 1900.) In the office of the State Commission in Lomacy: The secretary. In each State Hospital, Asylum and House of Eefuge: The treasurer. All chaplains. The attorney for each State Hospital. In the office of the Board of Health: The secretary. The medical expert on contagious diseases. In the Department of Labor : First deputy commissioner. Second deputy commissioner. One mediator of industrial disputes. One confidential clerk. (All classified March 22, 1901.)' The State Civil Sbevice Eulbs. 287 In the office of the Forest Preserve Board: The secretary. Attorneys not exceeding five. In the office of the Forest, Fish and Game Commission: The assistant secretary. One fire warden. (Classified June 16, 1900.) One special agent for the detection of frauds. (Classified June 16, 1900.) In the office of the Commissioner of Agriculture: One assistant commissioner. One conductor of Farmers Institutes. (Classified Jan. 13,. 1900.) In the office of the Board of Tax Commissioners: The secretary. Two expert examiners of special franchises. (Classified October 28, 1899.) One confidential appraiser. (Classified Mar. 21, 1900.) Six confidential special agents. (Classified Mar. 21, 1900.) In the office of the Commissioners of the State Eeservation at Magara: The secretary and treasurer. In the Weather Bureau at Cornell University: The meteorologist. The secretary and expert. In the Agricultural Experiment Station at Geneva: The director. The assistant director. In the State Keformatory at Elmira: The general superintendent. (Classified Feb. 5, 1901.^ The resident physician. (Classified Mar. 21, 1900.) AH chaplains. In the House of Eefuge at Hudson: The superintendent. (Classified Jan. 13, 1900.) 288 The State Civil Seevice Eules. In the Industrial School at Eochester: All chaplains. In the office of the Snperintendent of the Onondaga Salt Springs : The deputy superintendent. In the office of the Quarantine Commission: The secretary. All officers and other persons employed upon boats and tugs or in the Quarantine Stations. In the office of the Health Officer of the Port of New York: Two deputies. Six disinfectors. In the office of the Board of Port Wardens: The secretary. The collector. In the office of the State Inspector of Gas Meters: Four deputies. In the Soldiers' and Sailors' Home at Bath: The commandant. (Classified Feb. 7, 1900.) In the office of the Board of Managers 'New York State Exhibit Pan-American Exposition : The chief executive officer. (Classified June 16, 1900.) The secretary. (Classified June 16, 1900.) Three inspectors of construction. "j One janitor or custodian. ( (Classified Sept. 34, Superintendents of departments. [ 1900.) One stenographer or bookkeeper. J In the office of the State Fair Commission: The general manager. The superintendent of grounds and buildings. The secretary. The assistant secretary. The State Civil Sbeticb Eules. 389 The treasurer. The superintendent of racing department. (All classified May 18, 1900.) In the office of the Charter Revision Commission; The secretary. (Classified May 18, 1900.) The assistant secretary. (Classified July 31, 1900.} In the office of the Tenement House Commission: The secretary. (Classified July 31, 1900.) The counsel. (Classified July 31, 1900.) In the office of the Racing Commission: The secretary. (Classified Jan. 13, 1900.) The counsel. (Classified Jan. 13, 1900.) In the office of the Commissioners of the Land Office: Three appraisers. (As amended Jan. 17, 1900.) In each Normal School: The clerk to the principal In the Woman's Relief Corps Home, Oxford: All positions the appointees to which are certified to the Commission to be veterans, their wives or widows, army nurses residents of New York, or members of good standing in the "Woman's Relief Corps. In the office of the State Superintendent of Elections: The chief deputy. The clerk. The stenographer- The deputies not exceeding the number fixed by law. "New York State Hospital for the Care of Crippled and De- formed Children: Two assistant surgeons, receiving no compensation. One house surgeon, receiving for additional services as stew ard compensation not to exceed $300 per annum. (Classified Dec. 4, 1900.) 290 The State Civil Seetice Kules. In the Courts: One clerk, and one deputy clerk if authorized by law, of each court. One clerk, stenographer, attendant, or other assistant to each elective judicial officer. In the Supreme Court, Kings county, one chief attendant. (As amended Jan. 13, 1900.) In the Supreme Court, Appellate Division, First Department: One court attendant to be appointed by Justice Laughlin. (Classified April 15, 1901.) In the Appellate Division Court House, New Tork City : One custodian. (Classified May 18, 1900.) One telephone operator. (Classified July 10, 1900.)] One chief engineer. (Classified Nov. 14, 1900.) In the Supreme Court, Appellate Division, Third Department r The confidential attendant. (Classified May 24, 1900.) The Superintendent of Weights and Measures. In all Offices, Departments and Institutions: AH unskilled laborers, and such skilled laborers as are not included in the competitive class or the non-competitive class^ which are to be specially designated in the regulations pre- scribed by the Commission. Local Health officers whose compensation does not exceed three hundred dollars per annum, provided that persons ap- pointed shall be practicing physicians of not less than five years'^ reputable standing and whose nomination or selection is ap- proved by the State Board of Health and so certified to the Commission. County Seevick. In all offices, departments and institutions: All subordinates who are paid wholly from the salary or official emoluments of the head of the office, no part of which is to be returned or accounted for as public funds. All unskilled laborers, and such skilled laborers as are not in- cluded in the competitive class or the non-competitive class. The State Ciyil Seevice Ktjles. 391 ■which are to be specially designated in the regulations pre- scribed by the Commission. In the office of the District Attorney: All positions of assistant district attorney or deputy assistant district attorney, which are filled by persons duly and regularly admitted as attorneys and counselors at law in the State of New York. Urie County. In the office of the Board of Supervisors: The clerk to the board, one attorney, one sergeant-^t-arms, one messenger, one burial agent for deceased soldiers. Four agents for destitute children. (Classified Feb. 12, 1901.) In the office of the Coimty Judge: One stenographer (ex-officio clerk to the judge). In the office of the Surrogate: The clerk of the court. (As amended July 31, 1900.) In the office of the District Attorney: Two assistant district attorneys, first deputy assistant dis- trict attorney, second deputy assistant district attorney, one transfer tax assistant, one stenographer. (As amended July 31, 1900, and March 22, 1901.) In the office of the County Clerk: One deputy, six special deputies appointed to attend upon terms of court, to wit: One for each of the three Trial Terms of the Supreme Court, one each for the Equity Term and the Special Term of the Supreme Court, and one for the County Court. One title searcher (in charge of searching division), one cashier, the election clerk. One secretary. (Classified Feb. 12, 1901.) In the office of the Sheriff: One under sheriff ; one bookkeeper, acting as cashier ; thirty- nine deputy sheriffs, seven of whom may be employed in the 393 The State Civil Seevice Ettles. county jail ; one stenographer, wko is paid "wholly from tke sal- ary or official emoluments of the sheriff, no part of which is to be returned or accounted for as public funds. (As amended Dec. 15, 1900.) In the office of the County Treasurer: One deputy, one cashier. One secretary. (Classified Feb. 12, 1901.)"] In the office of the County Auditor: One county auditor. In the office of the Trustees for the City and County Hall: One secretary. In the office of the Commissioner of Jurors: One commissioner of jurors, one deputy. In the office of the Superintendent of the Poor: One deputy. In the Erie County Almshouse: One deputy keeper. In the Erie County Penitentiary: One deputy superintendent. In the office of the Coroner: One chaplain. In the Erie County Morgue : One keeper, one assistant keeper. New Yorh County. In the office of the Surrogate: The chief clerk, the first law assistant to surrogate, the sec- ond law assistant to surrogate, the third law assistant to sur- rogate, the clerk of the court, one clerk to the surrogate, one clerk to the additional surrogate. "The State Civil Seetioe Eules. 393 In the office of the District Attorney: Eight assistant district attorneys, seventeen (as amended Nov. 14, 1900) deputy assistant district attorneys, one chief clerk, one stenographer to grand jury, one chief law stenog- rapher, three law stenographers, one chief county detective offi- cer, one deputy chief county detective officer, one indictment clerk, one grand jury clerk. In the office of the County Clerk: One deputy, one cashier, one confidential clerk (secretary), twenty-one deptities and special deputies, appointed to attend upon terms of the courts, to wit: One for the Appellate Term of the Supreme Court, one for the Trial Term, Part I (who shall be also clerk of the Court of General Sessions), one each for the eleven Trial Terms, and one each for the eight Special Terms. In the office of the Sheriff: The under sheriff, the counsel, one warden, one cashier, one secretary. In the office of the Register: The deputy register, the chief clerk, the chief searcher and examiner (in charge of the searching department). In the office of the Public Administrator: The assistant public administrator, one agent. In the office of the Special Commissioner of Jurors: One special commisioner of jurors, one assistant special com- missioner of jurors. Kings County. In the County Court: One deputy clerk, one clerk to each judge, one warden of the grand jury. In the office of the Surrogate: The clerk of the court, one clerk or stenographer to the surrogate. 2M The State Civil Seevice Eules. In the office of the District Attorney: Six assistant district attorneys, one chief clerk, three stenog- raphers. In the office of the County Clerk: One deputy as general clerk of the Supreme Court, one deputy as chief clerk of the County Court, eighteen subordi- nate officers and employees who are paid wholly from the sal- ary or official emoluments of the coimty clerk, no part of which is to be returned or accounted for as public funds. In the office of the Sheriff: Twenty-four subordinate officers and employees who are paid whoUy from the salary or official emoluments of the sheriff, no part of which is to be returned or accounted for as public funds. In the office of the Commissioner of Records: One deputy, one superintendent. In the office of the County Treasurer: One deputy. In the office of the Commissioner of Jurors: One commissioner of jurors. In the office of the Special Commissioner of Jurors: One special commissioner of jurors. In the County Jail : The warden. Queens County. In the office of the Surrogate: The clerk of the Surrogate's Court, one clerk or stenogra- pher to the surrogate. In the office of the District Attorney: One assistant district attorney. The State Civil Service Eules. 295 In the office of the County Clerk: Fourteen subordinate officers and employees who are paid ■wholly from the salary or official emoluments of the county «lerk, no part of which is to be returned or accounted for as public funds. In the office of the Sheriff: Five subordinate officers and employees who are paid wholly from the salary or official emoluments of the sheriff, no part of which is to be returned or accounted for as public funds. In the office of the Commissioner of Jurors: The assistant commissioner of jurors. Richmond County. In the office of the Surrogate: The clerk of the Surrogate's Court. In the office of the District Attorney: One stenographer. In the office of the County Clerk: Eight subordinate officers and employees who are paid wholly ;from the salary or official emoluments of the county clerk, no part of which is to be returned or accounted for as public funds. In the office of the Sheriff: Deputy sheriffs, who are paid wholly from the salary or official emoluments of the sheriff, no part of which is to be returned or accounted for as public funds. In the office of the Commissioner of Jurors: The assistant commissioner of jurors. (County service classified June 16, 1900.) EULE VI. ApPOIIirTMENTS IN THE ExEMPT ClASS. Appointments may be made to the exempt class without ex- amination. Notification of such appointments shall be made forthwith to the Commission for entry upon the official roster and subsequent certification for payment of salaries. 296 The State Civil Seevicb Rules. EuLE VII. The Competitive Class. The competitive class shall include all positions now exist- ing or hereafter created of whatever function, designation or compensation in each and every branch of the classified service, except such positions as are specifically designated in the exempt class or the non-competitive class, arranged in the following groups and subdivisions: GKOUPS BASED UPON THE CHAEACTEE OF THE SEEVICE EEISTDEEED. Group A. Clerks, which term shall include all positions, the duties of which are of a clerical character, and which are not otherwise specifically provided for herein. Subdivision 1. Secretaries, chief clerks. 2. Clerks, recorders, registers, copyists. 3. Clerks with special educational requirements. 4. Bookkeepers, accountants. 5. Stenographers and typewriters. 6. Pages, office boys and girls. Group B. Cashiers, which term shall include all positions^ the duties of which are the actual receipt, custody or disburse- ment of money or the enforcement of the accountability for the same. Subdivision 1. Cashiers, tellers, paymasters, disbursing agents or clerks, financial clerks. 2. Auditors, comptrollers. Group C. Custodians and messengers, which term shall in- clude all positions, the duties of which are the charge of prop- erty or persons, or as attendants. Subdivision 1. Stewards who are not disbursing agents, su- perintendents of buildings. 2. Matrons. 3. Storekeepers. 4. Prison and reformatory keepers and guards. 5. Officers, attendants, nurses, etc., having care of inmates of institutions and hospitals. 6. Protectors of forest, fisheries and game. The State Civil Sebvicb Eules. 397 Subdmsion .7. Messengers, lashers, attendants, orderlies, marshals, criers, porters, watclimen, in courts and offices. 8. Janitors. 9. Elevator-men. Group D. Engineers, which term shall include all positions ■where qualifications of an engineering or cognate character are required. Subdivision 1. Civil engineers. 2. Levelers, surveyors, rodmen. 3. 'Chainmen. 4. Architects. 5. Architectural draftsmen. 6. Engineering draftsmen. T. Chief engineers. 8. Electrical engineers, dynamo tenders, eleo- tricians. 9. Steam engineers, firemen, engine drivers. Group E. Inspectors, "which term shall include all positions,, the duties of which are the inspection of materials or work- manship or the supervision of laborers. Subdivision 1. Superintendents of construction or repair* when not civil engineers or architects. 2. Inspectors of masonry, iron work and other materials and workmanship. 3. Electrical inspectors. 4. Overseers, foremen. Group F. Special agents, which term shall include all posi- tions requiring detective ability. Subdivision 1. Examiners for the banking department. 2. Examiners for the insurance department. 3. Examiners for the Comptroller and other State officers. 4. Examiners for State boards and commis- sions. 5. Deputy factory inspectors. 6. Special excise agents. 7. Inspectors of milk, butter, cheese, vinegar, etc. 298 The State Civil Seevice Rules. Group G. Law positions, which term shall include all posi- tions requiring some legal knowledge. Subdivision 1. Law clerks, brief clerks, statutory revision clerks, clerks in other offices, whose du- ties require some legal knowledge. 2. Corporation examiners and clerks. 3. Clerks of courts. Group H. Medical positions, which term shall include all positions requiring medical or pharmaceutic knowledge. Subdivision 1. Superintendents of asylums and hospitals, who are necessarily physicians. 2. Physicians, surgeons. 3. Medical examiners. 4. Medical internes. 5. Pathologists. 6. Health officers. T. Sanitary experts and inspectors. 8. Pharmacists, apothecaries. 9. Veterinarians. Group L Mathematicians, which term shall include all posi- tions requiring special mathematical qualifications. Subdivision 1. Actuaries, statisticians, computers. 2. Expert accountants. Group J. Scientists, which term shall include all positions requiring special scientific knowledge. Subdivision 1. Geologists. 2. Paleontologists. 3. Botanists. 4. Entomologists. 5. Bacteriologists. 6. Chemists. Group K. Agriculturists, which term shall include all posi- tions requiring agricultural or horticultural knowledge, in- cluding arboriculture and the breeding and care of domestic animals. Subdivision 1. Agriculturists, farmers. 2. Horticulturists, gardeners, arboriculturists. The State Civil Sebvice Eules. 399 Group L. Instructors, which term shall include all positions, the duties of which are scholastic instruction, or to educate or test the ability to instruct. Subdivision 1. Principals of schools. 2. Teachers in all branches, other than such as are otherwise specially provided for in this classification. 3. Examiners of educational and scholastic qualifications. Group M. Mechanics and craftsmen, which term shall in- clude all positions requiring special mechanical skill, or as tradesmen, not classed as laborers. Subdivision 1. Mechanics, craftsmen and tradesmen, whose duties shall be actual service as such. 2. Instructors in any handicraft or mechanical or other trade. Group IT. Miscellaneous positions, which term shall include all positions requiring expert or other qualifications not em- braced in the exempt or non-competitive classes, or in other groups in this class. Subdivision 1. Superintendents of institutions, who are not necessarily physicians or instructors. 2. Chief and assistant librarians. 3. Interpreters. 4. Proofreaders. 5. Superintendents of hatcheries. 6. Other positions, except those specifically named in this classification as in other groups or hereafter included in them. 1. The omission in the above classification of any official designation or appellation of a position in the service shall not exclude such position from the classification, as it will be comprised in the group and subdivision to which it belongs by the general definition and specifications of such group and subdivision. 2. The Commission may further subdivide for the purposes of examination the positions in any group or subdivision 300 The State Civil Sekvice Rules. thereof, so as to test practically the special qualifications requisite for such positions. 3. The classification of all positions shall be governed solely by the respective duties and functions of such positions, and in requesting fl-om the Commission certifications from eligible lists for selection for appointment, the heads of ofiices shall give in detail the duties attached to such positions, and shall name so near as may be the groups and subdivisions that com- prise respectively such duties and functions. 4. For the purpose of orderly arrangement and of regulated promotion, the positions in each subdivision of each group shall be divided into grades based upon the rates of annual compensation. Grades of employment fixed by law, or by regulation of any department, office or institution made in pursuance of law, shall be the grades for purposes of promotion under this rule. In the Supreme Court, county of Kings, positions shall be graded as follows: Grade A. Court officers or court attendants, salaries from $1,200 to $1,800 per annum, inclusive. Grade B. Clerks and assistant clerks, salaries from $2,500 to $4,000 per annum. Grade C. Court interpreters, salaries $1,500 to $2,500 per annum. Grade D. Court stenographers, salaries $3,000 per annum. Promotions from Grade A to Grade B will be allowed upon competitive examination. [As amended Jan. 13, 1900. J In all other cases positions shall be graded as follows: Grade 1. All positions, the compensation of which is at the rate of not more than $600 per annum. Grade 2. All positions, the compensation of which is at the rate of more than $600, but not more than $900 per annum. Grade 3. All positions, the compensation of which is at the rate of more than $900, but not more than $1,200 per annum. Grade 4. All positions, the compensation of which is at the rate of more than $1,200, but not more than $1,400 per annum. Grade 5. All positions, the compensation of which is at the rate of more than $1,400, but not more than $1,600 per annum. The State Civil Service Eules. 301 Grade 6. All positions, the compensation of which is at the rate of more than $1,600, but not more than $1,800 per annum. Grade 7. All positions, the compensation of which is at the rate of more than $1,800, but not more than $2,100 per annum. Grade 8. AH positions, the compensation of which is at the rate of more than $2,100, but not more than $2,500 per annum. Grade 9. All positions, the compensation of which is at the Tate of more than $2,500, but not more than $3,000 per annum. Grade 10. All positions, the compensation of which is at the rate of more than $3,000 per annum. KuLE VIII. Appointments to Positions in the Competi- tive Class. 1. Appointments shall be made to or employment shall be given in all positions in the competitive class that are not filled by promotion, reinstatement, transfer or reduction under these rules by selection from the persons graded highest on the most nearly appropriate eligible list resulting from open competi- tive examination held by the Commission, except as herein otherwise provided. 2. Whenever an appointing officer shall request a certifica- tion from the Commission for appointment to or employment in any position in the competitive class, he shall specify the title, duties and compensation of such position, so that certifi- cation may be made from the proper eligible list, or that when necessary a proper eligible list may be prepared as the result of an open competitive examination held for that purpose. The secretary shall thereupon as soon as practicable certify to the appointing officer for appointment, from the eligible list most nearly appropriate to such position, as it may then exist, the names of the three persons, if there be so many, standing high- est on such eligible list, indicating such of them, if any, as are honorably discharged soldiers, sailors or marines from the army or navy of the United States in the late civil war, citi- zens and residents of this State, together with the average per- 302 The State Civil Seevice Eules. centages and post-office addresses of such persons. If the ap- pointing officer shall notify the Commission of more than one vacancy at any time, the secretary shall certify to the appoint- ing officer the names of as many persons as there are vacan- cies to be filled, Tvith the addition of two names. No person shall be certified from an eligible Hst more than three times to the same appointing officer for the same or a similar posi- tion, except at the request of said officer, unless the person so certified is a veteran, in "which case his name shall continue to be certified so long as it remains on the eligible list under these rules. Whenever the sex of those whose names are to be certified is fixed by any law, rule or regulation, or is speci- fied in the request for certification, the names of those of the sex so fixed or specified shall be certified, but in other cases certification shall be made without regard to sex. When an eligible certified for appointment shall fail to accept an offer of appointment by mail within the four business days next succeeding the mailing of notice of appointment, or shall fail to accept an appointment within the same or next succeeding business day when notification is sent him by telegram, he shall be deemed to have declined the appointment, and upon proper notice of such fact from the appointing officer the sec- retary shall certify from the list an additional name or names to replace the names of persons so declining. An eligible who has declined an appointment shall not thereafter be certified for a position at the same or any less salary except upon his written request to the Commission. Whenever one or more eligibles shall have declined any appointment offered and an eligible whose relative standing is lower shall have been ap- pointed to the position, the salary or compensation of such appointee shall not be increased within a period of six months after his appointment beyond that offered to the persons so declining. 3. From the persons whose names are so certified the offi- cer shall make selection to fill the vacancy or vacancies, sub- ject, however, to the provisions of the Constitution giving pref- erence in appointment to veterans. Whenever the appointing officer who shall have made a requisition to fill a certain num- ber of vacancies shall appoint a number smaller than that of the vacancies named by him, he shall not make selection from The State Citil Seevice Eules. 303 the wkole number certified to him but only from that num- ber of names standing highest upon the list that would have been certified to him had the requisition stated the number of Tacancies which he actually filled. Whenever an eligible list from which certification is to be made contains only one name, such person shall be eligible for temporary appointment until additional eligibles can be certified after competitive ex- amination, but may be appointed permanently in the discretion of the appointing officer. [As amended May 8, 1900.] 4. Whenever there are urgent reasons for filling a vacancy in any position in the competitive class, and there is no list of persons eligible for appointment after competitive exami- nation, the appointing officer may nominate a person to the State Commission for non-competitive examination, and if such nominee shall be certified by such Commission as qualified after such non-competitive examination, he may be appointed pro- visionally to fill such vacancy until a selection and appoint- ment can be made after competitive examination, but such provisional appointment shall not continue more than ten days after notice to the appointing officer that an eligible list has been prepared for such position, nor in any case for a longer period than two months. 5. In case of vacancy in any position in the competitive class, where peculiar and exceptional qualifications of a sci- entific, professional or educational character are required, and upon satisfactory evidence that for specified reasons competi- tion in such special case is impracticable, and that the position can be best filled by the selection of some designated person of high and recognized attainments in such qualities, the Com- mission may suspend the provisions of the rule requiring com- petition in such case, but no such suspension shall be general in its application to such place, and all such cases of suspen- sion shall be reported to the Legislature, with the reasons for the same. 6. When the services to be rendered by an appointee in the State service are for a temporary period, not to exceed one month, and the need of such service is important and urgent, the appointing officer may select for such service any person on the proper list of those eligible for permanent appoint- ment, without regard to his standing on such list. 304 The State Civil Seevice Ktjlbs. Y. ^o person shall be eligible to temporary appointment to any position in the competitive class if he has received a tem- porary or provisional appointment within the previous four months. 8. The acceptance by an eligible of a temporary appoint- ment shall not affect his standing on the register for a per- manent employment, nor shall the period of temporary service be counted as part of the probationary service, in case of sub- sequent appointment to a permanent position. 9. The Commission may by special action except from ex- amination under these rules any person engaged in private business who shall render any professional, scientific, techni- cal or other expert service of an occasional and exceptional character to any State officer, and whose compensation in any one year shall not exceed $300; provided, that such limitation of compensation shall not apply to any such person employed by the Governor, Comptroller or Attorney-General; and further provided, that the Commission may suspend such limitation of compensation by special resolution in other cases. All excep- tions granted under this section, with the reasons therefor, shall be set forth by the Commission in its next annual report. 10. Whenever a vacancy exists in the competitive class, and there is no eligible list from which an appointment can be made thereto, and in an open competitive examination duly advertised there either are no applicants or none of the ap- plicants appearing is found qualified, the head of the office may nominate a person to the Commission for non-competitive examination, and if such nominee shall be certified by the Com- mission as qualified, he may be appointed to fill such vacancy. In case there is a person serving in such a position under pro- visional examination, and no one applies to compete with him in an open competitive examination duly advertisedj the pro- visional appointment of such person may be made permanent. 11. A person legally holding a position by appointment for a fixed term, may be retained without a re-examination at the expiration of such term upon receiving a re-appointment, but otherwise the position shall be deemed vacant for the purpose of choosing his successor. (As amended 'Nov. 14, 1900.) The State Civil Sekvice Rules. 305 • KuLE IX. Applicatioits to Entee Examinations. 1. Ho person shall be admitted to any examination for a position in the competitive class, until as provided by the Civil Service Law, he shall have filed an application under oath upon a form prescribed by the Commission and accompanied by such certificates as may be prescribed. 2. Every applicant for examination must be a citizen of the United States, and an actual resident of the State of ISTew York at the time of his application, provided, that such re- quirements as to citizenship and residence may be specially sus- pended by the Commission as to any position requiring high professional, scientific or technical qualifications, or in cases where through low compensation for services such require- ments are disadvantageous to the public interests, but all such cases, whether of individuals or groups, with the reasons there- for, shall be reported to the Legislature. 3. 'No application for examination shall be accepted, unless the applicant is within the age limitations fi:xed by the Commis- sion for entrance to the position to which he seeks to be appointed. 4. The Commission may refuse to examine an applicant, or after examination to certify an eligible who is found to lack any of the established preliminary requirements for the ex- amination or position for which he applies; or who is physi- cally so disabled as to be rendered unfit for the performance of the duties of the position to which he seeks appoint- ment; or who is addicted to the habitual use of intoxicating beverages to excess; or who has been guilty of a crime or of infamous or notoriously disgraceful conduct; or who has been dismissed from the service for delinquency or misconduct; or who has intentionally made a false statement in any material :fact, or practiced, or attempted to practice, any deception or fraud in his application or examination, or in securing his eli- gibility or appointment. Any of the foregoing disqualifica- tions shall be good cause for the removal of an eligible from the service after his appointment. 5. In applications for examination for positions requiring scientific, professional or technical qualifications, the Commis- sion may require evidences of special education for, or of practical experience for a satisfactory term in, such science, 306 The State Civil Seevioe Ettles. profession, art or trade; and shall require the production of such certificates of competency and licenses as are provided by the statutes of this State as necessary to enable the practice of any profession, art or trade. 6. Any application for a position in the civil service made in contravention of the provisions of section 4 of rule II, mil be rejected. Rule X. Examinations. 1. All examinations shall be public and shall be practical in their character and relate to such matters as "will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed. 2. The Commission shall prepare lists of preliminary re- quirements and subjects of examination for the several posi- tions and groups of positions in the competitive class, and under its direction and subject to its approval the chief ex- aminer shall, from time to time, prepare such standard ex- aminations for the positions and groups of positions aforesaid as shall be wholly or in part pertinent to them, under the provisions of the preceding section of this rule. 3. The Commission may further direct oral examinations or special practical tests of fitness for any particular positions requiring any scientific, professional or technical knowledge or manual skill. 4. For the purpose of making examinations of applicants,, from time to time, as may be required, the Commission shall designate and select a suitable number of persons to be mem- bers of boards of examiners at such places as it deems neces- sary, and shall duly commission such persons as examiners; and the Commission may at any time substitute any other per- son in place of any one so selected. When persons selected as examiners are in the official service of the State, the head of the office in which such persons serve shall be consulted; and in the discharge of their duties as examiners, the persons so selected from the official service shall be responsible solely to the Commission, and shall act under its regulations and directions. Ihe members of any board of examiners shall not all be adherents of one political party when other persons are available and competent to serve upon such board. ' The State Civil Sbevioe Etjles. 307 ^ 5. Examinations of a general character shall be held at least once a j^ear in each of the following places: Albany, Amsterdam, Auburn, Binghamton, Buffalo, Dunkirk, Elmira, Geneva, Hornellsville, Ithaca, Jamestown, Johnstown, Kings- ton, Lockport, Malone, Middletown, E"ewburgh, New York, Ogdensburg, Olean, Oneonta, Oswego, Plattsburg, Poughkeep- sie, Eochester, Sandy Hill, Saratoga, Syracuse, Utica and Water- town, and may be held more often in such places, or at other places for specific purposes in the discretion of the Commis- sion; and under its direction the chief examiner shall advertise such examinations in such manner as their nature may require. Previous notice of examinations shall be mailed to all persons who have made application in due form, with copies of such general or special regulations as the Commission shall prescribe. 6. Whenever physical qualifications are of prime importance in the proper discharge of duties in any position, applicants must pass a physical examination and be certified as qualified in such respect, either before admission to examination, or be- fore record in the proper eligible list, or before certification for appoiatment, as the Commission may determine. 7. Whenever, in its opinion, any position to be filled in the competitive class has a fiduciary or executive character, the Commission may require, as a part of the examination, such special certificates by reputable and responsible citizens as to the character, trustworthiness and business experience of an applicant or eligible as it may deem proper and expedient. All such special certificates shall be properly filed and retained as public records in the office of the Commission. 8. When the position to be filled involves fiduciary respon- sibility, the appointing officer, where otherwise permitted by law, may require the appointee to furnish a bond or other security and shall notify the Commission of the amount and necessary details thereof. 9. !N"o person who has entered any competitive examination for a position in the classified service shall be admitted within nine months from the date thereof to a new examination for the same position. [As amended Nov. 28, 1899.J 10. Examination papers shall be rated on a scale of 100, and the subjects therein shall be given such relative weights as 308 The State Civil Seetice Eules. the Commission may prescribe. After a competitor's papers have been rated he shall be duly notified of the results thereof. EuLE XI. Eligible Lists. 1. Every competitor who attains an average percentage of 75 or over on all the obligatory subjects in any examination, and whose standing on every such obligatory subject is 60 or over, shall be eligible for appointment to the position for which he was examined; and the names of eligibles shall be entered, in the order of their average percentages, on the proper regis- ter of eligibles; provided that the names of competitors who have passed as above and whose claims for preference under section 9 of article V of the Constitution have been allowed by the Commission, shall be placed in the order of their re- spective average percentages at the head of the proper regis- ter of eligibles. 2. When two or more eligibles on a register have the same average percentage, preference in certification shall be deter- mined by the order in which their applications were filed, but neither priority in the date of application nor of examination will give any other advantage in position on the registers of eligibles. 3. Appointment shall be made from the eligible list most nearly appropriate for the group in which the position to be filled is classified, and a new list shall be created for a stated position or group of positions only when there is no appro- priate list existing or when the existing list from which cer- tification is to be made is likely to be exhausted. 4. The Commission shall prescribe the character of the dis- tinct eligible lists, designating the positions that may be filled by certification from each of such lists. A transfer of names from one eligible list to another, prepared as above, may be made by direction of the Commission. 5. The term of eligibility shall be fixed by the regulations of the Commission at not less than one nor more than four years, with reference mainly to the probable number and frequency of certifications to be made from such lists respectively. 6. Merit lists for appointment in the State service existing at the time of the passage of the Civil Service Law shall be con- tinued as the eligible lists from which appointments are to be The State Citil Seevicb Eules. 309 made until an examination for similar positions stall be held and reported by the Commission under these rules, and all eligible lists prepared as the results of fitness examinations are hereby abolished. EuLE XII. Teem gi- Peobatioit. 1. Every original appointment to or employment in any posi- tion in the competitive class shall be for a probationary term of three months, and an appointing or nominating officer in noti- fying a person certified to him for appointment or employ- ment shall specify the same as for a probationary term only; and if the conduct, capacity and fitness of the probationer are satisfactory to the appointing officer, his retention in the ser- vice after the end of such term shall be equivalent to his permanent appointment, but if his conduct, capacity or fitness be not satisfactory he may be discharged at the end of such term, -without regard to the provisions of Kule XXIII limiting the power of removal. Whenever tvsro or more persons appointed from the same eligible list are serving as probationers iu the same depart- ment, and there is necessity for a reduction of the force of such department affecting such persons, they shall be preferred for retention in the order of their original standing upon such list. [As amended March 21, 1900.] 2. Every officer under whom any probationer shall serve during any part of his probation shall carefully observe the quality and value of the services rendered by such probationer, and his conduct, and if so required shall report in -writing to the proper appointing officer the facts observed by him, show- ing the character and qualifications of such probationer, and of the ser-pice rendered by him, and such reports shall be pre- served on file. EuLE XIII. Sbasow Positions. 1. All positions in the competitive class, where the nature of ser-dce is such that it is not continuous through the year, but recurs in each successive calendar year, shall be designated as season positions and shall be subject to the pro-visions of these rules applicable generally to positions in such class, ex- cept as herein otherwise pro-vided. 310 The State Civil Seetice Eules. 2. Any person originally appointed to or employed in a- season position, under the provisions of these rules, and who has been temporarily separated from the service by the expira- tion thereof in any year, shall be entitled to re-appointment to or re-employment in the same position in the next ensuing year, upon filing in the office of the Commission, in such form as it may prescribe, a request for such re-appointment or re- employment within six weeks previous to and at least thirty days before the date of resumption of such short-term service. The Commission shall certify to the proper appointing or em- ploying officer the names and post-offices 'addresses of the per- sons who have made such formal requests, and they shall be reinstated in the positions vacated by them in the previous year in the order of the date of their original appointment or latest promotion in the several grades, provided that in the meantime they are not disqualified from any of the causes recited in the fourth section of Kule IX. Rule XIV. Peomotions. 1. Except as otherwise provided in this rule whenever a vacancy occurs in any position in the competitive class above the lowest grade in any group, the Chief Examiner shall forth- with arrange to hold a promotion examination limited to those persons who have for more than six months served with fidelity in the next lower grade in such group in the same office, de- partment or institution, provided, that if there are no persons who have served with fidelity for six months in the next lower grade, or provided all persons in the next lower grade fail in any promotion examination, then all persons in the second lower grade who have served with fidelity for six months in the same group in the same office, department or institution, shall have the right to compete in said promotion examination. On the request of the appointing officer the Commission may permit persons occupying two or more of the next lower grades to compete for the promotion, reasons for such course being set forth in detail. Whenever it is found by the State Commis- sion not practicable to fill a vacancy in any position through promotion in the manner herein prescribed, such vacancy shall be fiUed by original appointment through competitive exami- The State Civil Sekvice Etjles. 311 nation in accordance with the provisions of subdivision 1 of Eule VIII. [As amended Sept. 24, 1900.] 2. As provided by the Civil Service Law an increase in the salary or other compensation of any person holding an office •or position within the scope of these rules beyond the limit fixed for the grade in which such office or position is classified shall be deemed a promotion. 3. No promotion can be made from a position in one class or group to a position in another class or group, unless the same be specially authorized by the Commission, but a person employed in any position shall not, because of such appoint- ment, be barred from the open competitive examination pro- vided for original entrance to any other position. 4. The test of actual service being the main factor in fitness for promotion there shall be kept in every office continuous and comparative records of the efficiency, punctuality, atten- tion and general good conduct of all persons employed therein. Such records shall at all times be open to inspection by the State Commission and if the same have been regularly and properly kept they shall constitute one of the elements in such promotion examination, with such relative weight as shall be assigned to them by the chief examiner. If such records have not been regularly and properly kept the chief examiner shall prescribe such tests as to him may seem best calculated to determine the relative merit and fitness of the persons entitled to enter the promotion examination. 5. The appointing officer shall notify the Commission of any vacancy in a position in his office to be filled by promotion, and thereupon, after consultation with the appointing officer the Commission shall direct a competitive examination of those entitled to enter the same under the provisions of this rule, and shall publish the same by notice, giving date and place, posted conspicuously in the office where such vacancy exists, and sent by mail to those eligible to such examination. 6. After consultation with the appointing officer under whom the vacancy exists the Commission shall appoint an examining "board of three members. The written part of the examina- tion shall be confined to the duties of the office in which the vacancy occurs, and particularly to the duties of the position to be filled. Due weights will be given to the candidates' 313 The State Civil Seevice Rules. seniority and past record in the office and to any special fitness for the duties of the higher position. 7. The conduct of such examination and the preparatioix of the eligible list shall be subject to the general provisions of Rules X and XI, provided, however, that no eligible list for promotion shall be valid beyond one year. The Commission shall certify from the eligible list for promotion in the same manner provided in section 2 of Rule VIII for certification for origiaal appointment, except that where vacancies ia the position of first assistant physician in any of the State hos- pitals are to be filled, the Commission shall certify in addition to the three highest names upon the eligible list the names of all persons at that time connected with the institution in which the vacancy exists whose rating is eighty-five per cent, or over. [As amended May 8, and July 10, 1900. J 8. 'No recommendation of any person for promotion, whether verbal or written, shall be entertained or received, unless made in the ordinary course of duty by his immediate official su- periors, and the presentation of any recommendation other than that of such superiors shall be considered an unwarrant- able interference with the public service, and the person so recommended may be required to show, before being certified for promotion, that such recommendation was not made by his request or connivance. 9. When an appointing officer shall submit information in writing to the State Civil Service Commission showing that there is any person in his department whose services therein and whose experience and qualifications are of such a charac- ter that such person can better discharge the duties of the position in which there is a vacancy than any of the persons who are entitled to enter the promotion examination, the Com- mission shall direct an inquiry into the matter, and if satisfied that the statements of the appointing officer are correct, may authorize the promotion of such person. 10. Whenever there is but one person entitled to promotion to fill a vacancy and willing to compete therefor, or whenever an appointing officer is desirous of promoting all the persons in a particular grade entitled to compete for promotion, such person or persons may be promoted to the next higher grade without examination upon a certificate of the facts and the The State Civil Service Rules. 313 approval of the Commission. [As amended July 29, and Oct. 2, 1899.] Rule XV. Tbawsfees. 1. A person who has received an absolute appointment to any position in the competitive class may be transferred to a position in the same group, subdivision and grade in any other office, provided that for original entrance to the position pro- posed to be filled by transfer there is not required by these rides, in the opinion of the Commission, an examination in- volving essential tests or qualifications different from or higher than those involved in the examination for original entrance to the position held by the person proposed to be transferred; but this restriction shall not apply in case the name of such person shall be upon the eligible list for the position to which he is proposed to be transferred. 2. !No transfer can be made from any position in the un- classified service to any position in the classified service, nor from any position in one class to any position in another class, nor from any position in any grade, subdivision or group in the competitive class to any different grade, subdivision or group in that class, unless the same shall be specially author- ized by the Commission, and such authorization shall be re- ported, with the reasons therefor, to the Legislature ; provided, that a person who, by promotion or transfer from a position in the classified service, has entered a position, appointment to which is made by the Governor, by and with the consent of the Senate, and has served continuously therein from the date of said promotion or transfer, may be retransf erred from such unclassified position to the position from which he was so trans- ferred, or to any position to which transfer could be made therefrom. Rule XVI. Reittstatement iw Service. 1. Any person who has held a position by appointment under the civil service rules, and who has been separated from the ser- vice through no delinquency or misconduct on his part, may be reinstated without re-examination in a vacant position in the same office and in the same group, subdivision and grade, within one year from the date of such separation, provided that for original entrance to the position proposed to be filled 314 The State Civii Seevice Rules. by reinstatement there is not required by these rules, in the opinion of the Commission, an examination involving essen- tial tests or qualifications different from or higher than those involved in the examination for original entrance to the posi- tion formerly held by the person proposed to be reinstated. 2. Whenever in any department or institution an office or position is abolished, or whenever the number of positions of a certain character is reduced, the person or persons legally holding the office, or filling the position, shall be entitled to re- appointment to or reinstatement in the said position or office if it is thereafter within one year re-established under the same or any other designation. Rule XVII. Ceetificates foe Peomotion, Tea^stsfee and Reinstatement. 1. TJpon the written request of an appointing officer, stating the essential facts in regard to any proposed promotion, trans- fer or reinstatement, the Commission wiU, if such promotion, transfer or reinstatement be in accordance with law and the provisions of these rules, issue its certificate of that fact to such officer. 2. All promotions, transfers and reinstatements herein au- thorized shall be made only after the issuance of such certificate, except those which may be specifically exemnted from such condition by regulation of the Coromission, Rule XVIII. Definition of the Non-Competitive Class. The non-competitive class shall include such positions as are not in the exempt class and which it is impracticable to include in the competitive class. It shall comprise the following positions and such positions as may hereafter be added; provided, that from time to time, the Commission shall transfer positions from this class to the competitive class whenever it may be found practicable to hold competitive examinations to fill them: The State Civil Service Eules. 315 POSITIONS IN" THE NON-COMPETITIVE CLASS. In the office of the Comptroller: The watchman. In the office of the Treasurer: The watchman. In the Insurance Department: The watchman. In the Department of Public Buildings: Messenger and weigher, upholsterer, tin and coppersmith, gardener, chief carpenter, carpenters, painters, shade and car- petman, plumber and gasfitter, plumber's helper, machinist, as- sistant machinist, steamfitter, locksmith, steamfitter's helper, boilerscaler, stonecutter and tilesetter, elevatormen. One en- gineer, one assistant engineer and three firemen, such persons, however, to be subject to non-competitive examination and their employment not to continue beyond thirty days after the ad- journment of the legislature of the year 1901. (As amended March 22, 1901.) In the Department of Public Works: The harbor masters. Engineer of tugboat running in Buf- falo harbor and Niagara river. (As amended Nov. 14, 1900. )| In the Appellate Division Court House, New York city: Elevatorman. (Classified July 10, 1900.) In the State Hospitals : Watchmen, policemen, barbers, supervisors, nurses, attend- ants, ward-helpers, housekeepers, chefs, head cooks, bakers, meatcutters, butchers, laundry overseers, launderers, head laundresses, linemen, plumbers, steamfitters, carpenters, paint- ers, blacksmiths, foremen, tailors, dressmakers, shoemakers, printers, bookbinders, head farmers, dairymen, gardeners, flor- ists, railway conductors, pages, firemen. [As amended Janu- ary 13, 1900.J 316 The State Civil Sekvice Eules. In the office of the Forest, Fish and Game Commission : The protectors and foresters. The assistant oyster protector. In the State Prisons: The assistant matrons. In the Prison for Women at Auburn: The attendants. In the House of Kef uge for Women at Albion : Carpenter, firemen, gardener, housekeeper, nurses. (As amended Feb. 12, 1901.) In the State School for the Blind at Batavia : Baker, carpenter, farmer, firemen, florist, housekeeper, usher. (As amended Feb. 12, 1901.) In the Soldiers and Sailors' Home at Bath: Baker, blacksmith, carpenter, farmer, firemen, gardener, head cook, head launderer, lineman, musicians, nurses, steamfitter, superintendent of mess-hall and kitchen. (As amended Feb. 12, 1901.) In the Reformatory for Women at Bedford: Carpenter, firemen. (Classified Feb. 12, 1901.)' In the State Reformatory at Elmira : ■Carpenter, farmer, firemen, head cook. (As amended Feb. 12, 1901.) In the House of Refuge for Women at Hudson : Carpenter, firemen. In the Custodial Asylum at Newark : Attendants, baker, carpenter, firemen, gardener, nurses. (As amended Feb. 12, 1901.) In the Thomas Asylum at Iroquois: Attendants, farmer, firemen, housekeeper, nurses. (As amended Feb. 12, 1901.) The State Civil Sbevice Eules. 317 In the State Industrial School at Rochester : Carpenter, farmer, firemen, head cook, head laundress. (Classified Feb. 12, 1901.) In the Custodial Asylum at Eome: Attendants, baker, blacksmith, carpenter, farmer, firemen, gardener, head cook, head launderer, painter, supervisors, as- sistant supervisors, assistant matron. (As amended Feb. 12 and March 22, 1901.) In the Craig Colony at Sonyea : Attendants, baker, blacksmith, butcher, carpenter, dairyman, farmer, gardener, head cook, head launderer, mason and brick- layer, nurses, painter, plumber, supervisors, tailor, usher, watch- man. (As amended Feb. 12, 1901.) In the Institution for Feeble-Minded Children at Syracuse: Attendants, baker, carpenter, farmer, firemen, gardener, housekeeper, head cook, head laundress, shoemaker, supervisors, tailoress, usher, watchmen, painter. (As amended Feb. 12, 1901.) EULE XIX. EmPLOTMBH-T IIT THE NoN-CoMPETITIVE ClASS. 1. The positions in the non-competitive class must be filled by such persons as upon proper non-competitive exanainations shall be certified as qualified to discharge the duties of such positions by an examiner or examiners selected or appointed for that purpose by the Commission. The head of any office, department or institution in which there may be a vacancy or vacancies in any position or positions in this class, may name for examination a person for each vacancy. The Commission may provide by special regulation that in any institution where a number of persons are employed in the same grade, the em- ploying officer may name for examination more than one per- son, in order that there may be a list of qualified persons from which to make an immediate selection in case of vacancy. Such nomination may be made to the Commission, or to an exam- iner or board of examiners, as the Commission may prescribe by regulations. 318 The State Civil Seevice Eules. 2. The ConunissioiL shall select, appoint and commission ex- aminers or boards of examiners to test the qualifications of per- sons named for employment in positions in the non-competitive class, and they shall be subject to the provisions of the fourth section of Rule X. 3. Examinations for positions in the non-competitive class shall be such as shall determine the following qualifications: First. That the person examined is within the limits of age prescribed for the position or employment to which he has been named; Second. That he is properly certified as free from any physi- cal defect or disease which would be likely to interfere with the proper discharge of his duties; Third. That his character is such as to qualify him for such position or employment; and Fourth. That he possesses the requisite knowledge and ability to enter on the discharge of his duties in the service. To preserve a uniform standard in such qualifications for like positions and employments in the several institutions and offices of the State service, the Commission, after consultation with the principal officers concerned, may by regulations prescribe imiform limitations and tests for the government of the examiners. KuxE XX. Repoets of Appointing Officees. For the purpose of certification to the Comptroller, or other fiscal officer, for the payment of salaries and to enable the Com- mission to keep an official roster of the classified service as re- quired by law, each appointing and employing officer, from time to time after the date of the promulgation of these rules and upon the date of the official action in or Icnowledge of each case, shall report to the Commission as followis: (a) Every appointment or employment whether probation- ary, temporary, or otherwise, in the classified service, with the date of commencement of service and the title and compen- sation of the position. This includes every employment or designation of any per- son to render any service, whether permanent, temporary or special, to the State of New York or any of its civil divisions to which these rules shall be extended, in any capacity what- The State Civil Sbbvice Rules. Sid' ever, compensation for which is to be made to the person em- ployed or designated, except in the military service and the unclassified service as defined by law and by section 2 of Eule III. (b) Every failure to accept an appointment under him by a person entitled thereto, with copies of the offer or notice of appointment and the reply thereto, if any. (c) Every discharge during or at the end of a probationary term, with the date thereof. (d) Every vacancy in a position, whether caused by dis- missal, resignation or death, with the date thereof. (e) Every position abolished, with date of such abolition. (f) Every change of compensation in a position with the date thereof. (g) Every promotion, giving positions from which and to- which made, vdth the salaries and date thereof. (h) Every transfer, giving the positions from which and to- which made, with the date and salaries thereof. (i) Every reinstatement in a position, with the date and salary thereof. Ettle XXI. The Official Rostee. The Commission shall keep in its office an official roster of the classified State service, and shall enter thereon the name of each and every person who has been appointed to, employed,^ promoted or reinstated in any position in such service upon such evidence as it may require or deem satisfactory that such person was appointed to, or employed, promoted or reinstated in the service in conformity with the provisions of law and of these rules. The official roster shall show opposite, or in con- nection with each name, the date of appointment, employment, promotion or reinstatement, and the office in which and the compensation of the position, date of commencement of ser- vice, and the date of transfer in or separation from the service by dismissal, resignation, cancellation of appointment, or death. Eule XXII. Ceetificatiost foe Payment foe Seevices. For the purpose of certification of pay-rolls, estimates and accounts as required by section nineteen of the Civil Service 330 The State Citil Seevice Eules. Law, appointing officers and heads of departments shall fur- nish the Commission with pay-rolls, estimates, accounts and certificates in form and manner as follows: 1. Heads of departments, offices and institutions in the State service, whose employees are paid individually direct from the treasury of the State or any civil division thereof, shall fur- nish the Commission, at least five days before payment is to be made, pay-rolls in duplicate, showing the names of the per- sons to be paid, the title of the position held or kind of service performed by each person, the rate and amount of com- pensation to which he is entitled, and the period for which he is to be paid, and shall certify that the persons named therein are employed solely in the proper duties of the positions and employments indicated, and that persons described as or pro- posed to be paid as " laborers " are employed at ordinary un- skilled labor only. After examination and certification by the Commission as hereinafter prescribed, such pay-rolls shall be transmitted by it to the Comptroller or fiscal officer of such civil division for further examination and payment as required by law, and one of said duplicates shall accompany the warrant on the Treasurer or other disbursing officer. 2. For payments for irregular or occasional services, and for advances of salary to regular employees, the head of such a department, office or institution shall transmit to the Commis- sion the original account or a special pay-roll or a request for advance payment, bearing his written approval, which approval shall be deemed to be a certificate of the facts required by the preceding section to be certified on the regular pay-rolls. Upon examination and certification by the Commission such account, pay-roll or request shall be forwarded to the Comp- troller or other fiscal officer. 3. Heads of departments, offices or institutions whose em- ployees are paid directly by the department without previous detailed estimate to the Comptroller, shall furnish the Com- mission, before payment is made, or in case of employees of the Department of Public Works and of the State Engineer and Surveyor on the canals, outside of Albany, before credit is claimed from the Comptroller on such pay-rolls, the pay-rolls and certificates as required in section one hereof, and except in the case noted, disbursing officers of such departments, The State Civil Service Eules. 321 offices and institutions shall not pay such persons until the Com- mission shall certify as hereinafter prescribed. Heads and disbursing officers of such departments, offices and institutions shall file the pay-rolls certified by the Commission as vouchers in claiming credit from the Comptroller or other fiscal officer for such payments. 4. The estimates for payment of officers and employees, and for services of State hospitals and charitable institutions re- quired by law to render detailed estimates in advance, under what is known as the " estimate system," containing the names, titles of positions held or kind of service performed and rate of compensation of all officers and employees in the classified service with the certificate specified in section one hereof, shall be submitted to the Commission for certification before ap- proval by the Comptroller or other department having power of revision of such estimates, and no vouchers for payments for services shall be received unless in accord with such esti- mates, and the certificate of the Commission. 5. The Secretary or assistant secretary of the Commission shall compare such pay-roll, estimate or account for services with the official roster and shall attach thereto or place thereon a certificate in form substantially as follows: I hereby certify that the person (or persons) named in this (or the attached) pay-roll (or estimate or account) for services rendered to the State of New York in the ,. ... .contain- ing names have been appointed or promoted to or employed in the positions or places and at the rates of com- pensation indicated in pursuance of the Civil Service Law, and the rules made in pursuance thereof as shown by the official Toster of the State service, except (Here insert names in regard to which the pay-roll, estimate or account disagrees with the official roster.) Secretary of the State Civil Service Commission. To provide for the making of such certifications and for other purposes the Commission shall designate an employee in its office to act as assistant secretary of the Commission, un- 323 The State Civil Service Edles. der and by direction of the Secretary when that officer is on duty and for him and in his stead in his absence. 6. Upon satisfactory evidence that, with intent to evade the provisions of law and of these rules, any person appointed to or employed in any position in the classified service has been assigned to perform duties other than those for which he was examined and certified, or under any title not appropriate to the duties to be performed, the Commission will refuse cer- tification, and remove his name from the official roster. Eule XXIII. Causes eoe Eemoval. To secure compliance with the provisions of the Civil Ser- vice Law prohibiting removals because of political opinions or affiliations and in accordance with the further provisions re- garding the removal of honorably discharged soldiers, sailors, and marines and exempt volunteer firemen, no removal of any person in the classified service of the State shall be valid Tmless and until a statement of the causes of such removal shall be filed with the Commission and a copy of the same furnished to the person sought to be removed, and until such, person has been afforded an opportunity to present an expla- nation in writing. [As amended July 29, 189'9.] Eule XXIV. Extension of Eules. These rules shall not be deemed to extend to the offices^ places and employments in the civil divisions of the State, until after due inquiry by the Commission it shall be found practicable, of which finding proper and timely notice shall be given. In pursuance of the foregoing provision these rules have been extended to the offices, places and employments in the Civil Service of the counties of Erie, Kings, New York, Queens and Eichmond, to take effect from and after June 16, 1900. [As amended June 16, 1900.] Eule XXV. Administeative Eegulations. The Commission shall prescribe and enforce suitable regu- lations for carrying into effect the provisions of these rules The State Civil Sebvice Kulbs. 323 and those of the CiTil Service Law and of section 9 of article V of the Constitution, not inconsistent therewith; and shall prescribe blank forms for all applications, certificates, reports, records and returns required under these rules and the regula- tions made in pursuance thereof. STATE OF NEW YOEK: Executive Chambee, June 8, 1899. The foregoing rules prescribed by the State Civil Service Commission are hereby approved. THEODOEE EOOSEVELT, Oovemor, GENERAL REGULATIONS. Adopting Obdeb. The State Civil Service Commission, imder the authority conferred by section 9 of the Civil Service Law and Knle XXV of the rules prescribed pursuant thereto, approved by the Governor, and promulgated on the 8th day of June, 1899, hereby makes the following regulations, reserving the right to modify the same from time to time, and to prescribe such special regulations as may be expedient for the proper enforce- ment of the rules aforesaid. Eegttlatioit I. Chief Examinee. The Chief Examiner, subject to the direction of the Com- mission, shall have charge of all matters pertaining to exami- nations and in connection therewith he shall 1. Prepare blank forms for application for examination. 2. Keceive applications for competitive examination and de- termine all questions relating to eligibility of candidates. 3. Advertise and issue authority to hold all examinations, and supervise the preparation of questions and other prelimi- nary arrangements for such examinations and, so far as prac- ticable, attend them. 4. Grant authority to candidates to enter examinations. 5. Prepare, after consultation with appointing officers con- cerned, schemes of examination, including age limits and other preliminary requirements for candidates. 6. Assign and direct the work of examiners and take care to secure accuracy, uniformity and justice in their proceed- ings, and such proceedings and all papers pertaining thereto shall at all times be open to him. Whenever the qualifications for a position are of professional, scientific, techni(fal or expert character, the Chief Examiner may obtain such advice and assistance from competent and trustworthy sources as may 336 The State Civil Seevice Eegulations. be expedient and available. In case a vacancy occurs in any position of examiner during a recess of the Commission, the Chief Examiner may, when necessary, select a person to fill such vacancy temporarily, pending a permanent selection by the Commission. 7. He shall take care that the rules and regulations are com- plied with and bring any case of their infraction to the atten- tion of the Commission. He shall also from time to time inspect the proceedings and papers connected with the exami- nations for the service of cities, and make investigations into complaints regarding such examinations, and make report of such inspections and investigations to the Commission. 8. He shall perform such other appropriate duties as may be specified in these regulations or assigned to him by the Commission. Eegulation II. Seceetaet. 1. The Secretary shall keep the minutes of the proceedings of the Commission and have charge of the books, records, • papers, official seal and other property in its office. 2. He shall notify candidates of the results of their exami- nations and enter the names of successful competitors upon the proper register of eligibles. 3. He shall make certification to appointing officers, upon their requisition, of those eligible to appointment or employ- ment. 4. He shall keep the official roster and have charge of the certification of pay-rolls and estimates for payment of com- pensation. 5. He shall have charge of the accounts of the salaries and expenses of the Commission and its subordinates, conduct its correspondence and perform such other appropriate duties as it may assign him. 6. The Assistant Secretary shall act under the direction of the Secretary as his assistant and shall perform the duties of the Secretary in his absence. Eegulation III. Examinees. 1. The examiners of the Commission are classified as Salaried Examiners. The State Civil Seetice Eegulations. 337^ Special and Expert Examiners. Local Examiners. Institution Boards of Examiners. 2. The salaried examiners shall devote their whole time to the work of the Commission under the direction of the Chief Examiner. 3. Special and Expert examiners shall be designated and •employed by the Commission from time to time as the work is required to prepare questions and rate candidates in com- petitive examinations. Such examiners shall be paid such com- pensation as shall be agreed upon and shall be subject to the general direction of the Chief Examiner. 4. Local examiners shall be appointed in the various cities in which competitive examinations are required by law to be held. The Chief Examiner shall designate the examiner or examiners to hold each examination. The number of local examiners to be employed shall not exceed For 1 to 3 competitors, 1 examiner. Erom 4 to 30 competitors, 2 examiners. Erom 30 to 60 competitors, 3 examiners. Eor more than 60 competitors, 4 or more examiners. The compensation of local examiners shall be: In first class cities, $5 per day. In second class cities, for examiner in charge and one as- sistant, $5 per day; for other assistants, $4 per day. In other places, for examiner in charge and one assistant, $5 per day; for other assistants, $3.50 per day. Local examiners shall not incur expense in connection with ■examinations beyond necessary stationery and supplies except at the direction of the Commission or the Chief Examiner. 5. Boards of examiners shall be established in the several State hospitals and institutions to conduct the examination of persons nominated for positions in the non-competitive class by the proper appointing officer. Such boards shall consist of three or more members, one of whom shall act as secretary and two or more of whom may conduct an examination in the absence of the others. The secretary shall keep a record of the proceedings of the board and of the examinations held by it, and shall report to the Commission the names of persons examined and the results of their examinations. The appli- 328 The State Civil Service Eegtjlations. cation and examination papers of candidates shall be for- warded to the Commission -with the report. 6. Examiners shall take care to secure uniformity and fair- ness in the conduct of examinations. They must not disclose the details of answers of candidates. No examiner or other person serving under the Commission shall attempt to influ- ence the marking or grading of any candidate, or the selec- tion, nomination, appointment or employment of any person in the civil service. Eegulation IV. Application. 1. All applications for admission to examination shall he made upon the blank forms prescribed and furnished by the Commission, and no one will be admitted who has not made such application in satisfactory form. 2. In every application for examination for original ap- pointment in the competitive class, the applicant must state on oath and in his own handwriting: (1) the position or kind of examination desired; (2) his full name, residence and post- office address; (3) his term of residence in this State; (4) his citizenship, and if naturalized, the date and place of his natu- ralization; (5) the date and place of his birth; (6) his previous employment in the civil service, if any; (7) his business or employment for the last preceding five years; (8) his education; (9) if in the army or navy of the United States in the late Civil War and honorably discharged therefrom, the name of organization or vessel to which attached, date of enlistment or commission, position or rank, and date and cause of discharge from the service; (10) such other information as the Commis- sion may require touching his eligibility and fitness for the public service. 3. The application must be accompanied (1) by a certificate of a practicing physician in good repute that he has examined the applicant and found him free from any physical defect or disease that would interfere with the proper discharge of his duties in the position applied for; (2) by the certificates of not less than three nor more than five reputable citizens that they have been personally acquainted with the applicant for at least one year and believe him to be of good moral character, o£ The State Civil Service Eegulations. 339 temperate and industrious habits and in all respects fit for the service he wishes to enter, and that they are willing that such certificate shall be published for public information, and (3) if the applicant is an honorably discharged soldier or sailor of the late Civil War, by the Adjutant-General's certificate of his honorable discharge or other satisfactory evidence of the same. 4. In addition to the information above mentioned appli- cants for positions requiring special qualifications shall furnish the evidences, certificates and licenses required under the pro- visions of section 5 of Eule IX. 5. The limits of age at the time of application for the fol- lowing named positions are as follows: Stenographer, teleg- rapher, stenographer and telegrapher, messenger, chainman, minimum, eighteen years; regents' clerk, minimum, sixteen years; page, minimum, fourteen years and maximum, eighteen years; junior clerks, minimum, sixteen years and maximum, twenty-one years. For all other positions the minimum age limit is twenty-one years, with no maximum limit. [As amended September 2Y, 1899; January 24, 1900.] 6. Defective applications will be suspended and applicants notified to amend the same, but no such notice will be given or opportunity granted a second time. 7. Applications must be filed at least five days before the date of examination to entitle the applicant to enter the same. 8. The date of the reception of all applications shall be in- dorsed thereon, and entered of record by the Commission, and if the applicants for any position are in excess of a number that can be examined at a single examination, they will be notified to appear in their order on the respective records, provided that veterans shall have precedence in such notification. 9. Applications and accompanying certificates, not returned for correction, will remain on file in the oflB.ce of the Commis- sion, and under no circumstances will be returned to the applicant. 10. All applications for admission to examinations must be directed to the " State Civil Service Commission, Albany, K Y." 11. Candidates for examination for positions in the non-com- petitive class shall file applications on blank forms prescribed by the Commission containing such information as the Com- 330 The State Civil Sektice Eegulations. mission shall deem necessary in regard to their eligibility and fitness for the positions applied for. Such applications may be presented at the time of examination and shall be forwarded to the Commission by the examiners together with the exami- nation papers. EEGULATioisr V. Examinations. 1. Competitive examinations will be held from time to time for such positions as shall be specially requested by appointing officers and for those for which, in the opinion of the Com- mission, the number of applicants or lack of eligibles renders an examination desirable. The preliminary requirements, sub- jects of examinations and relative weights for positions in the competitive class shall be published from time to time. The place and date of an examination for any position, when de- termined, and any other material information in regard thereto, will be posted in the office of the Commission in the Capitol at Albany at least ten days before the date of such examination. All examinations of a public and general interest shall be ad- vertised by the Chief Examiner so far as practicable in every county of the State at least ten days before the date of the examination by one insertion of a suitable notice in one or more prominent newspapers of the county; examinations of a professional and technical nature shall be advertised, so far as practicable, in suitable periodicals published in this State. 2. Notice of examination will be mailed ten days previous to the date thereof to each applicant then entitled to enter the same. If an applicant fails to receive due notice of an ex- amination, or gives satisfactory reasons for failure to attend an examination he shall be notified to attend the next exami- nation for the same subdivision and group, provided such ex- amination occurs within one year from the date of filing the original application. 3. Applicants must present themselves promptly at the hour and place specified in their official notification signed by the Chief Examiner of the Commission, and no one will be ad- nutted to an examination except upon the production of such notification. 4. In order to properly identify competitors, each person presenting himself for examination shall fill out a " Declaration The State Civil Sbevice Eegulations. 331 Sheet " on which he shall state the essential facts contained in his application paper. Each declaration sheet shall bear a different number which shall be used to designate the exami- nation papers of the competitor. The name of the competitor shall not appear on his examination papers except on the decla- ration sheet. 5. For the further identification of appointees and for the prevention of impersonation in examinations, every person ap- pointed after a competitive examination shall be required to fill out an identification sheet to be called "Declaration of Appointee." iSaid declaration shall require a reiteration of the essential facts of the application and declaration sheet and the statement of such other facts as the Chief Examiner shall require, and shall be filled out by the appointee in the pres- ence of the appointing officer or his representative who shall attach his certificate of such fact. Such declaration shall be forwarded with the notice of appointment to the State Civil Service Commission and shall be filed with the examination papers of the appointee. [As amended November 23, 189'9.J 6. The relative weights given to the several subjects or qualifications in an examination shall be fixed before the date thereof by the Chief Examiner under the direction of the Commission. Y. Non-competitive examinations for provisional appoint- naents under the provisions of Rule VIII shall be in their scope and character the same as competitive examinations to fill va- cancies in the same positions. 8. Whenever an oral'examination shall be prescribed as part of any scheme of examinations, a stenographic record of the oral questions and answers shall be made and the transcript thereof shall be preserved with the examination papers or report. Regulation VI. Maeking aitd Geadiitg of Examinatioit Papees. 1. So soon as practicable after an examination the papers of the competitors shall be marked and the general average of each ascertained. Such marking and ascertainment shall be under the direction of the Chief Examiner, and, so far as prac- ticable, shall be made at the office of the Commission. 33^ The State Civil Seevice Eegulations. 2. The marking of each competitor's papers shall be made on the scale of 100, which maximum shall represent the high- est attainable accuracy, and shall represent entire ignorance. The average of the marking of the several answers upon any one subject shall be the standing on that subject. ITo person shall have his name entered upon an eligible list who fails to attain an average percentage of 75, or over, on all the obligatory subjects in the examination, and a percentage of 60 or over on every such obligatory subject. 3. The absolute or general average standing of each com- petitor will then be made up in form substantially as follows, in accordance with the respective weights accorded to the subjects: Examination of ...... SUBJECTS. KemUv^e ^ Standing^ p,„a„,ts. 1. Writing from dictation 3 95 285 2. Copying from manuscript 2 78 156 3. Handwriting 4 80 320 4. Spelling 3 98 294 5. Arithmetic 4 62 248 6. Geography and History 1 70 70 7. Constitutional questions 1 63 63 8. Making a summary 2 75 150 Total weight and product .... 20 1,586 General average standing 79 . 30 It will be observed that the standing on each subject is mul- tiplied by the weight given that subject and the product placed in the third column, and the sum of these products, divided by the sum of the weights, gives the general average standing. 4. Withia five days after the filing of the report of any com- petitive examination, each competitor wUl be advised by mail by the Secretary of the Commission as to the result of his examination and his relative position on the eligible list. Prior to that time no inquiries to the Commission, or its officers, will be answered, nor will any letters, explanatory of errors pre- The State Civil Seetice Eegulations. 333 sumed to have been made in an examination, receive any attention. 5. A competitor receiving such notice may, in person or by duly authorized agent, in the presence of any officer of the Commission, inspect his examination papers, and, if, in his opinion, injustice has been done him, he may, within fifteen days after the receipt of notice, appeal to the Commission, specifying particularly and in detail the cause of complaint. Such appeal will be considered by the Commission, and, if necessary, it will direct the revision of the marking or grad- ing of the appellant's papers, or otherwise do justice in the premises. Eegulatioit VII. Eligible Lists. 1. After an examination for positions in any grade or sub- division in the competitive class, the names of such competitors as are eligible under the provisions of Rule XI shall be en- tered upon an eligible list for such position in order as follows: First, the names of veterans in the order of their rating; and, second, the names of other eligibles in the order of their rating. Opposite the name of each eligible shall be entered his post-office address and his rating. The accuracy of all such lists shall be checked by two officials in the office of the Commission. 2. The eligible list so prepared shall be entered by the Sec- retary in the proper place in the register of eligible lists, which may be kept by the card system, or otherwise, as deemed most convenient. Whenever there remain on the register any eligibles for any position at the time when the eligibles ascer- tained by a new examination are to be entered thereon, the names of all the eligibles shall be subject to the above regula- tion as to the order in which they shall be entered. 3. The term of eligibility shall be one year from the date of filing of the report of the examination, or until a new list of eligibles for the same positions shall be filed, if longer than one year, unless otherwise prescribed by the Commission. The term of eligibility for the position of State hospital superin- tendent shall be three years, and for the positions of court stenographer. State hospital matron, assistant civil engineer, first assistant physician, woman physician, regents examiner, 334 The State Civil Service Eegulations. court interpreter, engineering draughtsman, architectural draughtsman, apothecary, examination clerk, technical and trade instructors, chemist, steward, milk expert, butter expert, cheese expert, vinegar expert, chief engineer, inspector of boil- ers and engines, building inspector, inspector of nurseries, junior physician, librarian and library assistant, two years. When- ever a person whose name is on an eligible list for any position shall enter a new examination for the same position within his term of eligibility, his eligibility on account of the former examination shall cease from the date of filing of the report of the new examination, and from such date he shall be cred- ited with the mark and relative position obtained in the new examination. If he fail in the new examination, his name shall be stricken from the eligible list. 4. Copies of eligible lists shall not be furnished by the Com- mission except to the appointing officers having the right of selection from such lists. The lists will be open to public inspection. 5. The Secretary shall certify eligibles upon the requisition of an appointing officer in accordance with the provisions of Section 2 of Rule VIII in such form as the Commission may prescribe. 'No appointment shall be made from any certifi- cate of eligibles after the expiration of the eligible list from which such certificate is drawn, nor after receipt by the Com- mission of a report of examination providing new eligibles for such list. If the appointment shall be made of any person other than one of the three standing highest on the eligible list, the appointing officer shall forward to the Commission with the notice of appointment copies of all correspondence to and from the persons declining such appointment, in ac- cordance with the provisions of Rule XX and Section 2 of Eule Vni. [As amended May 7, 1900.] 6. Section 13 of the Civil Service Law requiring appoint- ments to positions in the State service, the duties of which are confined to a locality outside of Albany county, to be made 80 far as practicable, from residents of the judicial district including such locality, shall be applied as follows: (a) In certifications from the eligible lists of clerks, junior clerks, bookkeepers, stenographers, pages, teachers, storekeep- ers, messengers, janitors, assistant steam engineers, assistant The State Civil Seetice Eegulations. 335. €lectrical engineers, firemen, court stenographers, court attend- ants, court clerks, building inspectors, milk experts, veal in- spectors, housekeepers, nurses, supervisors, watchmen, florists and gardeners. [As amended Nov. 17, 1899; Dec. 15, 1900; Jan. 2, 1901.] (b) In certification from the eligible list of prison guards, residents of the First and Second Judicial Districts shall be certified for appointment in Sing Sing Prison; residents of the Third, Fourth and Kfth Judicial Districts for appointment in Clinton Prison, and residents of the Sixth, Seventh and Eighth Judicial Districts for appointment in Auburn Prison. (c) In certification from the eligible list for the position of foreman, Department of Public Works, residents of the fijst, second, third and fourth judicial districts shall be certified for employment at any locality within those districts; residents of the fifth and sixth judicial districts for employment at any locality -within those districts ; residents of the seventh judicial district for employment at any locality within that district; residents of the eighth judicial district for employment at any locality within that district. [As amended Jan. 2, 1901.] (d) In certification from the eligible list of court attendants for appointment in the Appellate Division of the Supreme Court, residents of the judicial department in which the va- cancy exists shall be preferred. [As amended March 15, 1901.] When the services to be performed in any position for which eligibles are to be certified from any of the eligible lists men- tioned in this section, are confined to a locality outside of Albany county, the Secretary shall certify from the proper eligible list the person or persons standing highest who are residents of the judicial district in which the service is located or, in case of guards, of the judicial districts indicated in (b) above; but if there be no eligibles who are residents of such judicial district, or if all such eligibles shall decline the ap- pointment, the person or persons standing highest on the whole eligible list shall be certified. Por the purpose of certification under this regulation the residence of any person shall be deemed to be the place stated by such person in his application to be his legal residence at the time such application is filed, but in case any person has 336 The State Civil Service Eegulations. ' removed from the judicial district in. which he resided at the time of the filing of his application for examination, such per- son shall no longer be eligible to appointment from that dis- trict, but shall, after three months, be on the eligible list for the judicial district into which he has moved. [As amended February 6, 1900.] Regulation VIII. Accounts. 1. All accounts for compensation as examiners or for prepa- ration of questions or marking of answers and papers, or other expenses of examinations, shall be certified by the Chief Examiner. 2. All accounts for other expenses of the Commission, ex- cept those for salaries and official expenses fixed by statute, and those certified as above by the Chief Examiner, shall be certified by the Secretary. 3. All accounts certified by the Chief Examiner and Secre- tary shall be approved • by the Commission before payment. Eegulation IX. Infoemation. 1. Greneral abstracts from the provisions of the law, rules and regulations, and other pertinent matter will be published by the Commission from time to time, for the information of appointing officers, applicants, candidates and others concerned. 2. The Commission cannot undertake to answer inquiries relating to cases which are not officially before it for decision, nor can it decide, except in cases of actual candidates, ques- tions respecting the application of the rules and regulations. 3. Particular answers cannot be given to inquiries which are answered expressly or by implication in published regulations or other similar documents. 4. The Commission cannot give any information upon the following points: (a) regarding positions in the unclassified service or in the exempt class of the classified service; (b) re- garding vacancies in any positions, existing or prospective; (c) regarding the duties of positions except as indicated by their classification; (d) regarding the personal interests of any in- tending or actual applicant, candidate or eligible. The State Civil -Sekvice Eegulations. 337 5. The examination papers of a competitor will be exhibited only to the competitor or his duly authorized representative, or to the appointing officer to whom his name is certified. 6. Copies of questions used in examinations cannot be fur- nished except in eases where they are published by the Com- mission for general information. 7. The qualifications of applicants and subjects of examina- tion, as prepared from time to time, will be published, but iu regard to certain positions in which vacancies are rare the nature and extent of the examinations may not be determined until vacancies occur. 8. Eligible lists may be published with the standing of the persons named in them, but under no circumstances will the names of persons passing below the minimum standing be pub- lished, nor will their examination papers be exhibited or any information given about them, except as provided in the fifth section of this regulation. REGirLATioiT X. Eesidence and Oitizekship. The restrictions of Section 2 of Rule IX as to residence and citizenship shall not apply to the following positions: a. On account of low compensation : Attendants, nurses and orderlies in asylums and hospitals and similar institutions. b. On account of professional or scientific requirements: All positions as scientists, technical and trade instructors and positions requiring special training and education, provided thdt if the eligible list resulting from any examination held for such a position contains the names of three or more persons who are citizens and residents of JSTew York State, such persons shall be preferred in certification to non-residents. [As amended July 31, 1900.] Kegtjlation XI. Commutation foe Board and Lodgings. The commutation for board and lodgings under Section 12 of Rule I shall be as follows: In the State hospitals, $10 per month, or $2.50 per month for each meal or for lodging. In other institutions, $12 per month or $3 per month for each meal or for lodging. 338 The State Civil Seevice Eegulations. REGDiiATioN XII. Positions Classed as Laboeebs. The following positions are classified as laborers exempt from examination under Rule V: In all departments and iostitutions, skilled and unskilled laborers employed temporarily on work of repairs and con- struction and not constituting part of the regular force of the department or institution. In the Department of Public Buildings: Laborers, cleaners, chief porter, porters, porteress, attend- ant, Executive Mansion; carpet sewer, janitress. Geological Hall (wife of janitor) ; janitress, State House (wife of janitor). In the Department of the Eegents of the University: Cleaners, laborers, porters, sewer in bindery, apprentice in bindery. In the State Hospitals: Assistant barbers, assistant butchers, assistant cooks, assist- ant meatcutters, assistant shoemakers, assistant tailors, bakers' helpers, carpenters' helpers, coachmen, cooks, chambermaids, domestics, drivers, farmers, kitchen helpers, laundresses, la- borers, masons' helpers, plumbers' helpers, porters, seamstresses, soapmakers, teamsters, waitresses. In the State Normal School at Brockport: One watchman at a compensation not to exceed $30 per month, without maintenance. [As amended April 20, 1901. J In the State charitable and reformatory institutions: Assistant farmers, assistant cooks, barbers, chambermaids, cloakmakers, coachmen, cooks, domestics, dressmakers, farm housekeepers, hosemakers, kitchen helpers, laborers, launder- ers, laundresses, seamstresses, sewerage tenders, teamsters, waiters, waitresses; also at the Soldiers and Sailors' Home, Bath: inmate sergeant-major, inmate commissary-sergeant, in- mate clerk headquarters, inmate employees whose compensa- tion is not more than $15 per month. [As amended Jan. 2, 1901.] The State Civil Service Ebgulations. 339' In the Department of the State Fair Commission: Caretaker. [Classified June 13, 1900.] In the Department of the State Engineer and Surveyor: Guides in the lIlTorth Woods, boatmen, laborers. [Classified May 21, 1900.] In the Department of Public Works: Patrolmen, lock-tenders, watchmen, cooks, teamsters, boat captains, boat commanders, water-boys, pavers, feeder-tenders, carpenters, reservoir tenders, pilots, firemen, cranesmen, bridge- tenders, deck hands, painters, blacksmiths, weighmasters, divers, janitors, laborers, one foreman temporarily employed in con- nection with clearing the shores of Kaquette pond and the out- let of Big Tupper lake, as provided in chapter 419 of the Laws of 1900; masons, stonecutters, and bosses of gangs whose com- pensation does not exceed $2.50 per day. [As amended Feb. 1, 1901.] In the Office of the Sheriff, Erie County: Porters, waitresses, cooks, laundresses. [Classified June 16, 1900.] In the Erie County Almshouse: Bakers, seamstresses, assistant seamstresses, cooks, assistant cooks, waitresses, masons, laundresses, assistant laundresses, carpenters. [Classified Sept. 18, 1900.] In the Erie County Penitentiary: Cooks, bakers, teamsters, kitchen matrons, prison matron (charge of laundry), prison matron (charge of sewing-room), house matron (charge of housework). [Classified June 16, 1900.] In the Department of the Trustees of the City and County Hall, Erie County: Twenty-four charwomen, six general cleaners, one outside man, one assistant outside man, one basement porter. [As amended March 15, 1901.] 340 The State Civil Sebvice Eegulations. In the office of the Sheriff, Xew York county: Six cleaners, two cooks, two assistant cooks, one laundress, two van drivers. [Classified June 16, 1900. J In the office of the Sheriff, Richmond county: Cooks. [Classified June 16, 1900.J The omission of any position from the foregoing list shall not be deemed to exclude from the exempt class any position falling within the definition of " laborer " as given in Rule I. By the Commission, Attest: JOHN C. BIEDSEYE, Assistant Secretary. FORMS. I'oiia of Proclamation of Civil Service Bules by th.e Commission. STATE OiF NEW XORK: State Oivil Sekvice Commission, Albany, May 18, 1899. In compliance with the provisions of section 9 of article V of the Constitution, and of chapter 370 of the Laws of 1899 of the State of New York, the State Civil Service Commission hereby prescribes the following rules for the regulation of the classified civil service of the State of New York, to take efEect and have the force of law, revoking all other rules to that end, when approved by the Governor. State Civil Service Commissioners. Form of Subpoena for Witness. THE PEOPLE OP THE STATE OF NEW YIOKK: To •. .1 , Greeting: We command tou that all and singular business and excuses being laid 'aside, you be and appear in your own proper person before the State Civil Service Commission of the State of New York at its offices in the Capitol in the city of Albany, N. Y., on the day of , 1900, at ten o'clock in the forenoon of that day, to testify and give any evidence, all and singular what you may know in 'a cer- tain investigation concerning all matters touching the enforcement and effect of the provisions of the Civil Service Law and the rules and regulations prescribed thereunder in the city of ,. ., N. Y., and concerning the action of the Mayor of the city of . .• , N. Y., and of the Municipal Oivil Service Commissioners of the city of , N. Y., in respect to the execution of the said Civil Service Law and the rules and regulations prescribed thereunder. Witness the official seal of the said Civil Service Commission of the iState of New York, and the hand of the President thereof, this on Piemoval — Order Giranting Writ of Certiorari. At a Trial Term of the Supreme Court held in and for the. County of Westchester, at the County Courthouse, in vil- lage of White Plains, on the IQth day of October, 1900. Present — Hon. Garret J. Garretson, Justice. In the Matter of the People of the State of New Yobk, on the Relation of Julius Kinney, against Patrick J. White, President, William Ca- TTTT.T,, John J. Kellet, Geoege Maube, John S. Powee, Henry C. Rath, Anton Schultheis, William H. Thornbukt, Geoboe A. Van Denhoff, Composing the School Board for the Borough of Queens of the City of New York. On reading and filing the petition of Julius Kinney, the relator, and the affidavits of Julius M. Mayer and James P. Duffy, and on consid- 398 FoKMS. eratioD of the several matters thereii) stated and contained, and the Court h'aving in its discretion dispensed with the notice of the appli- cation for a writ herein, and on motion of Mayer & Gilbert, attorneys for the relator, it is Ordered, that a writ of certiorari issue out of and under the seal of this Court, directed to Patrick J. White, president; William Cahill, John J. Kelley, George Maure, John iS. Power, Henry O. Rath, Anton Schultheis, Willi'am H. Thombury, George A. Van Denhoff, composing the School Board for the borough of Queens of the city of New York, commanding and requiring them to return the record of the proceed- ings resulting in the dismissal and the refusal to reinstate said Julius Kinney as an attendance officer; and it is further Ordered, that the Olerk of this Court be and he hereby is ordered to issue a writ of certior'ari under the seal of this Court in accordance with the form approved therefor. Enter, G. J. G., J. S. 0. Granted at Westchester Co. Trial Term, October 16, 1900. The 'Olerk of Queens county will please file. Levebett F. Cbtimb, Clerk. Writ of Certiorari. SUPREME COURT, ColmTT OF Westohestbb. In the Matter of the People of the State of New Yoek, on the Relation of Juuus Kinney, against Patrick J. White, President, William Ca- hill, John J. Kelley, George Madbe, John S. Power, Henry C. Rath, Anton Schultheis, William H. Thobnbury, George A. Van Denhoff, Composing the School Board for the Borough of Queens of the City of New York. The People of the State of New York to Patrick J. White, president; William Cahill, John J. Kelley, George Maure, John S. Power, Henry C. Rath, Anton Schultheis, William H. Thombuiy, George A. Van FOEMS. 399 Denhoff, composing the School Board for the borough of Queens for the city of New Yorlj: Whereas, we have been informed and advised by the petition of Julius Kinney, verified the 12th day of October, 1900, and the affi- davits of Julius M. Mayer, and James P. DufCy, that certain proceed- ings were had before you, the respondents herein, in which proceed- ings by the judgment and decision of you, the said respondents, in so far as before you lay, you did dismiss, remove and discharge and re- fused to reinstate Julius Kinney, the relator herein, from employment as attendance officer, and that In such proceedings others and divers errors and irregularities were and have been committed by you, the said respondents, to the prejudice of the ^aid Julius Kinney, and, therefore, being willing, for certain reasons and causes, to be certified of the judgments, actions, affidavits, notices, writings and proceedings In relation to the matter before you had, we, the People of the State of New Yorli, Do, therefore, command you that you certify to the Supreme Oourt of the iState of New York, in the county of Queens, the record of UU and singular the proceedings by and before you, the respondents herein, in the premises, and all notices, affidavits, documents, writings, testimony actions, decision of judgment of you, the said respondents. In any manner relating to the proceedings upon the dismissal of the appeal 'and refusal to reinstate the said Julius Kinney, and the record thereof and any record in any manner relating thereto with this writ that we thereupon cause to be done in the premises what should be right according to law. And that you then and there malie return of this writ pursuant to section 2132 of the Code of Civil Procedure within twenty days of the service thereof upon you at the office of the Olerli of the county of Queens, in the County Courthouse, in said county, and have you then and there this writ and the record and matter aforesaid. Witness: The Hon. Garret J. Garretson, one of the Justices of our Supreme Court of the State of New Yorii, at the County Courthouse, village of White Plains, in the county of Westchester, this 16th day of October, 1900. By the Oourt, LEVBEiBTT F. CRUMB. J. H. SlUTPHIN, [seal.] Clerk. The foregoing writ is hereby allowed. Dated New York, October 16, 1900. G. J. GARiRETSON, Justice of the Supreme Court of the State of New York. INDEX TO FORMS. Action: Page. to recover reasonable compensation for employee of Civil Ser- vice Commission, complaint 375 decision overruling demurrer 379 to oust a usurper 392-396 complaint 392 answer 394 judgment dismissing complaint 395 order of appellate division reversing judgment of dismissal. . 393 judgment of ouster 396 Affidavit: to procure mandamus directing reinstatement of one who has been removed without notice and an opportunity to ex- plain 352 allegations inserted as an excuse for laches where legal rights of relator were uncertain 354 allegation as to removing officer having notice of relator's special right as a veteran, etc 355 to procure reinstatement of a veteran who has been denied his preference in retention, over non-veterans, where a reduction of the force was necessary 368 to procure writ directing common council to make an appro- priation for municipal civil service commission 382, 389 Alternative Writ: order that it issue 356 form of 357 return to 360 Answer: in action to oust a usurper 394 Applications: form for registering 343 Appointment : form of probationary 342 notice of probationary 342 register of 344 report of, by appointing officer 346 26 401 402 Index to Poems. Certification: Page. request for 342 register for . , 344 certificate to be attached to pay-roll 346 mandamus to compel commission to attach 373, 374 Certiorari: to review proceedings upon removal 397-389 writ of 388 Complaint: in action for reasonable compensation of civil service commis- sion's employee, where no appropriation has been made 375 in action to oust a usurper 392 Eli^bles : request for certification of 342 register of 344 notice to show cause why eligible's name should not be re- moved from the list 345 Examination : form of nomination of candidate for provisional 345 Judgment: dismissing alternative writ of mandamus 362 dismissing complaint in action to oust a usurper 395 ousting a usurper 396 Laches: allegations to excuse 354 Mandamus: notice of motion for 350, 366 order to show cause why writ should not issue 351 affidavit to procure reinstatement of one who has been removed without notice of causes and without an opportunity to ex- plain 352 excuse for laches, wlien legal rights were uncertain 354 allegations as to relator having given notice that he was a vet- eran, etc. 355 allegations to procure show-cause order 356 order that alternative writ issue 356 alternative writ 367 return to 360 judgment dismissing 362 order granting peremptory writ and directing payment of back salary 362 form of peremptory writ 364 to compel reinstatement of veterans where non-veterans have been retained, in case of reduction of force 366 certification of pay-roll 373, 374 municipal common council to consider and adopt an estimate made for the support of the municipal civil service com- mission 880-392 Index to Poems. 403: !lTotice of Motion: Page. for writ of mandamus to procure reinstatement generally. . 350, 366 where veterajis have been denied their preference of reten- tion in a ease where a reduction of the force was neces- sary 366 to compel civil service commission to certify to validity of appointment of one borne upon the pay-roll 373 to compel common council to consider and adopt an esti- mate for an appropriation for the civil service commiSr sion 380 Order: to show cause why writ of mandamus should not issue 351 that alternative writ issue 356 granting peremptory writ and directing payment of back sal- ary 362 to show cause why writ should not issue requiring commission to certify to pay-roll 373 directing issuance of writ requiring commission to certify pay- roll 374 to show cause why writ should not issue requiring common council to consider and make appropriation for civil service commission 381 that writ be issued for foregoing purpose 391 reversing judgment in favor of defendant in action to oust a usurper 395 granting writ of certiorari 397 tPay-KoU: certificate of commission to be attached to 346 mandamus to compel 373, 374 Peremptory Writ: directing reinstatement and payment of back salary 365 Petition. (S«e Affidavit.1 Proclamation : of rules 341 Eegister: of applicants, form for 343 Sem.ovals : report of, by superior officer 346 Heturn: to alternative writ 360 Soster: ' report ' of appointing officer with data for 346 404 Index to Fohms. Holes: Page. proclamation of 341 approval of municipal, by State Commission 347 promulgation of municipal, by State Commission 347 notice to municipal commission of amendments to be made by State Commission 348 notice of resolution by State Commission, making amendment to municipal 349 Subpoena: for witness 341 Veteran: allegation in aflBdavit of relator as to superior having had notice of relator's special rights as a veteran 355 mandamus proceedings to compel reinstatement of, where there has been a reduction of the force and non-veterans have been retained in preference to veterans 366 "Witness : subpoena for 341 "Writ: of peremptory mandamus 364, 373, 392 of alternative mandamus 357 of certiorari 398 GENERAL INDEX. NoTB— The Table of Contents, at the beginning ol the book, can be used as a more condensed index than that which is here given. Page. Abolition of positions. (iSee Re-Instatement; Bemoval, and Sol- dier, Sailor and Marine.) every, to be reported to Civil Service Commission 319 Accounts. of Civil Service Commission, regulation as to auditing 336 Age. (See Applications; Soldier, Sailor and M'arine.) chief examiner to prescribe limits 325 no limits to apply to veterans 112, 120 limitations established 305, 328, 329 to be stated in application , 305, 328, 329 Applications. (See Examinations and Eligible Lists.) contents of 74, 305, 328 to be verified 85, 305 blanks to be furnished 74, 305, 325, 328 qualifications of 'applicants 305 when requirement of citizenship may be waived.... 305, 337 certificates of physicians and citizens required with 74, 328 age limitations 305, 329 when Commission may refuse to examine an applicant. ... 74, 305 right of court to compel production of, in court 82 statements in, not a test of qualific'ations 85 preference in employment as laborers to be given according to date of (see Labor Class, and Laborers) 105 for positions as laborers in cities, what evidence to be fur- nished 105 applicants may be subjected to examination 105 eepai'ate lists of, for labor positions in difiCerent Institutions and localities 105 rights of veteran applicants for labor positions 105 no question in, to refer to political affiliations 279 to be filed before examination 305, 328, 329 special certificates may be required with 305, 307, 328 when rejected 306 defective, suspended 329 notice of, given only once 329 date of ception of, to be recorded 329 to be kept on file 329 to whom to be sent 320 for non-competitive positions 320 applicants, when notice of examination sent to 330 when to present themselves for application 330 Appointing officer. (iSee Appointments; Classification; Public Em- ployees and Public Ofllcers; Rules; Vacancy.) defined 9, 278 liability of, for appointments contrary to Civil Service Law or rules 26, 110 406 Genekal Index. Appointing officer — Continued. Page. when obliged to fill vacancy 29, 114 may require bond of appointee 75 protected by certificate of Oommission as to eligibility of ap- pointee 79, 80 final judge, under Federal rules, as to eflBciency of previous service of subordinate seeking promotion 97 when is his decision as to competency of veteran final? 119 must report to Civil Service Commission all appointments, re- movals, promotions, etc 105, 246, 250, 318 liable in damages for failure to accord preference to veteran, 122 127, 128 in requesting certiflc'ation of eligibles, to state in detail duties of vacant position 300, 301 to how many names entitled, in case of more than one vacancy to fill 302 may designate of what sex shall be the persons certified to him 302 no person to be certified more than three times except at re- quest of 302 may nominate persons for non-competitive examination 317 Appointments. (See Appointing Officer; Classification; Employ- ment; Injunction; Probationary Term; Promotion; Public Employees and Public Officers; Ee-Instatement; Rules; Transfer; Vacancy.) to be in accordance with Civil Service Act and rules. . 26, 27, 105 249, 252, 281 if, contrary to law or rules, compensation of appointee to be paid by officer making the appointment 26 Invalidity of, in absence of rules 27 exigency appointments in absence of eligible lists 27, 89 right of, in absence of classification 28, 39 vac'ancy, when to be filled 29 when is appointment complete ' 29 re-appointment of incumbent at expiration of fixed term. . . 30, 3M Injunction against illegal 31 to be for probationary term 32, 309 rules to be made to govern 38, 281 In city service governed by rules 46 to exempt positions, without examination 61 only one, to exempt position unless rules specifically provide for more 61 to positions in competitive class to be from those highest on eligible list 72, 75, 76, 233, 234, 235, 236, 246, 301, 302 how soon to be made after certification 334 to be from most nearly appropriate eligible list 73 no appointment to positions unless title is appropriate to duties to be performed 73, 281 rights of promotion, re-instatement and transfer are superior to rights of appointment from eligible list. . 72, 73, 301, 310, 313 restrictions upon transfers and assignments 73 by judicial districts 73, 281, 334, 335 to positions as prison guards, court attendants of Appellate Division, or as foremen in the Department of Public Works, 336 examinations for, requirements 73, right of commission to refuse to certify one upon eligible list, 74 77, 305 to positions involving fiduciary responsibility, bond may be required 75, 305 General Index. ' 407 Appointmeuts — Continued. Page. power of, scope 75, 129, 231, 232, 233, 235 some range of discretion and choice must be left to ap- pointing officer 76 validity of emergency appointments made from list 76 of tliose certified by Commission are valid, even though list is erroneous 80 v(rhere notice of appointment fails to reach appointee 87 provisional S8, 303, 304 probationary. (See Probationary Term.) exceptions from competitive examination 88, 89, 303 temporary 88, 89, 303 of persons of high and recognized attainments in scientific, professional or educational matters 88, 303 for occasional and temporary service 308, 304 original, to be to lovs^est grade, if practicable 92 report of all, to be made by appointing officer to Civil Service Commission 105, 302, 318 right of veteran to, if only one veteran is certified 114 certificate by Civil Service Commission as to validity of, to be attached to pay-rolls 108, 109, 110, 111, 319 none are legal, if inconsistent with classification, even though classification is erroneous 100 preference in, given to veterans 112, 120, 236, 237 to positions under boards of education 115 " in every public department " 116 age and physical dis'abllity not to disqualify veteran from. . . . 120 power of, implies power of removal 129, 182, 163 not a judicial act 131 not to be influenced by political affiliations 178 not to be made, bec'ause of political contributions 178 of a successor is per se a removal of the incumbent 182 no power of appointment, no power of removal 183 using influence to procure appointment of another In return for his vote, or political actions, a misdemeanor 218 agreements to procure or control, invalidity of 219 illegal, taxpayer's action to restrain payment of compensation to appointee 223, 224 constitutional provision as to 227 a constitutional power of 231 to what extent can it be restricted 231, 232 unconstitutionality of statute requiring appointment of the highest person 233-236 effect of new constitutional provision on power of 235 right to refuse to certify a veteran for, more than three times, 237 302 to county positions 281 in case of more than one vacancy, how m'any names certified for 302 no one except a veteran to be certified for, more than three times, except at request of appointing officer 302 certification for, by sex 302 failure to accept, when deemed a declination 302 if declined, eligible not to be certified at same or less salary except upon a written request 302 salary not to be Increased within six months after, over that offered to a person who has declined 302 to be from one of three highest, subject to veteran's prefer- ence 302 •in case fewer are made than were stated in request for cer- tification would be made , 302 408 Genehal Index. Appointments — Continued. P^se. temporary appointment of the only person upon the eligible list, required 308 may be made perm'anent, when SOS \ no one eligible to temporary appointment who has previously within four months had a temporary or provisional 304 acceptance of temporary, does not remove one's name from eligible list 304 service under temporary, does not count as part of probation- 'ary term 304 of persons engaged in private business for occasional and tem- plorary service of a professional, scientific or technical char- acter 304 after non-competitive examination in case no eligible list re- sults from competitive examination 30i provisional, when to be made permanent 304 re-appointment of incumbent at expiration of fixed term . . 30, 304 power of commission to refuse, for certain reasons, to certify an eligible for 74, 77, 305 requirement of a bond as a condition of 305 percentage required in order to become eligible for 308 old merit lists for, to be continued until new examinations. .. 308 retention of which of two or more probationers when reduc- tion of force is necessary 309 to season positions where service is not continuous throughout the year but recurs with the season 309 re'appointment in succeeding year to a season position 310 request to be filed with Civil Service Commission 310 to be made by promotion, if practicable (see Promotion) 310 by transfer (see Transfer) 313 by re-instatement within one year (see Re-Instatement) 813 right to, if an office which has been abolished is re- established within a year under the same or different title 314 to non-competitive positions, how made 317 all appointments to be reported to Civil Service Commission, 105 302, 318 failure to accept, to be reported with correspondence to Civil Service Commission 319 Assessments. (See Political Contributions.) Assignments to duty. (See Transfer.) of policeman, permanently, must be as the result of an exam- ination 86 permanent, are promotions 91, 92 revocation of, when a removal 202 Attorney-General. duty of, towards veteran who claims to have been illegally removed 122 exemptions in office of. (See Exemptions.) occasional and temjKtrary service of a professional or scien- tific character in, suspension of competition 303, 304 Boards and commissions having corporate powers. (See Public Officers and Public Employees.) are they parts of the city government 13 Bond. (See Moneys, and Practicability.) appointing officer may require 70, 75, 307 financial liability of superior, when does it exist 86 General Index. 40 & Bribery. (See Misdemeanor, and Political Action.) Page, attempt to influence political action or vote, by promise of political patronage, is 218, 257, 258 Bureaus. (See Heads of Departments.) act to grade clerks in 91 heads of, in New York city, are protected by the charter from removal without notice and an opportunity to explain, 188 189 who are? 189, 190, 191 Candidates. (See Political Action.) not to promise to use official influence in return for votes or political action 218 Certification. (See Appointments; Eligible Lists; Examinations.) those graded highest to be certifled 72 the three highest to be certified 301, 308, 312, 334 period of eligibility 73, 75, 76, 333 from what list made T3, 85, 308, 334 when by judicial districts 73, 333, 334, 335 when Commission may refuse to certify one upon the list. . 74, 79 305 certificate of Commission as to eligibility unimpeachable 79 a complete protection to appointing officer 79, 80 injunctions against certification from eligible lists because of fraud in examinations 82 certificate to be attached to pay-roll, by Commission, as to validity of appointments of those upon pay-rolls . . 108, 100, 110 111, 251, 319-321 veteran's preference in appointment 112 must a veteran be appointed if there is only one veteran cer- tified? 114 right to refuse to certify 'a veteran more than three times, quaere 237 veterans under rule to be certified as long as on the list 302 In request for, appointing officers to state in detail the duties of the position which is vacant and to name appropriate group and subdivision 3(K), 301 to state which persons are veterans 301 percentages 301 how many names in case there is more than one vacancy .... 302 no person to be certified more than three times except upon request of appointing officer 302 to be made according to sex only in case appointing officer re- quests 302 failure to accept appointment within specified time after cer- tification, effect of 302 In case of failure of one certified to accept appointment, a new name to be certified 302 if eligible declines appointment, he is not to be again certified for a position carrying same or less salary except upon his written request 302 Balary of a person accepting, is not to be increased within six months over that offered to a person declining position. . . . 302 appointment to be from names certified subject to veteran's constitutional preference 302 within what time to be made 334 selection for appointment, how made in case a smaller num- ber of appointments is made than was stated in the request for certification would be made 302 410 General Index. Certification — Con tinned. Vage. ■ in case only one name upon the list, the eligible is entitled to temporary appointment 303 provisional appointment in case of no existing eligible list. . 308 permanent appointment aftei- a non-competitive examination, when competitive examination produces no list 304 preference in, in case two or more eligibles have the same percentage 308 promotions, transfers, re-instatement, etc., to be made only after issuance of a certificate of the Civil Service Commis- sion 314 for promotion, how made 312 exception as to physicians in hospitals of insane 312 in case of declination of appointment, all correspondence on the subject to be filed with Commission 334. regulations as to, by judicial districts 334, 335 prison guards 336 in Department of Public Works 335 court attendants. Appellate Division 335 to be made by secretary 336 Certiorari. (See Removal.) to review removal of a veteran 128, 165, 167 Charges. (See Removal.) Charter of Greater New York: provisions as to tr'ansfer 81 provisions as to removal of veterans. . 120, 151, 187, 188, 190, 191 provisions as to removal, generally 187-192 Cities. (See City Service Municipal Commission; State Civil Ser- vice Commission; Laborers.) city legislative officers, in unclassified service 33 common council of, may be compelled to make appropriation for Civil Service Commission 53 scope of present and former civil service acts as affecting. ... 02 registration of laborers in 105 Veteran Law applies 128 rights of veterans, in first-class cities, to be transferred to similar position if position held by them is abolished 129 right of Legislature to provide different systems of civil ser- vice for different cities 238 Citizenship and residence. (See Appointments, and Eligible Lists.) regulation as to 337 City service. (See Cities; Laborers; Municipal Commission; Reg- istration; Rules.) defined 9 to be classified pursuant to rules 46, 251 municipal commissioners to be appointed 46 qualifications of 47 appointment of, by State Commission in certain cases. . 48, 49 rules for, to be approved by m'ayor and State Commission. ... 47 to be prescribed by State Commission in certain cases. . 48, 49 laborers to be registered 47 examinations in 47 reports of municipal commissioners 47, 48 roster of, to be sent to State Commission 48 removal of municipal commissioners 48, 49 power of State Commission to amend municipal rules 49 Genbkal Index. 411 Civil divisions. (See Cities; Counties; State Service.) Page, duty of State Commission to extend civil service rules to, if practicable 38, 42 " Civil service." (See Appointments; Civil Service Law; Consti- tution; Rules.) defined 0, S2 classified and unclassified 31, 32, 280 Civil Service Law. (See Civil Service Legislation; Constitution.) present act is a general act applicable to entire State 1, 50 and to all cities 51 construction of . . . : 8, 121 definition of terms in 9 scope of present and former, as to exemptions 61, 62 repeal of former, by " White " law 224 duty of Legislature to enact 237 necessity of legislation to give effect to constitutional pro- vision 238 negative effect of Constitution in absence of 288 right of Legislature to provide for different systems of civil service in different cities 238 constitutionality of former 239, 241, 242, 243 New York act in harmony with United 'States Constitution . . . 2i42 federal act in harmony with United States Constitution 243 text of original 245 text of " Black " law , 260 Civil service legislation. (See Civil Service Law; Constitution.) history of 2 federal 2 New York 2, 3 Massachusetts 4 Illinois 4 Chicago 4 Bvanston 5 Wisconsin 5 Ohio 5 Louisiana 6 New Orleans 6 Tennessee 6 Memphis 6 Indiana 6 Connecticut 6 California 7 iSan Francisco 7 Washington 7 Seattle 7 Texas 8 Galveston 8 Pennsylvania 8 Philadelphia 8 constitutional provisions 8 history of statutes as to exemptions 61 as to veterans 113 as to political contributions 215, 216 text of earlier civil service acts 345 text of former veteran acts 263 Class. (See Classification; Competitive Class; Classified Service; £}xempt Class; Non-Competitive and Labor Class.) term defined 278 413 Geneeal Index. Page. Classification. (See Appointments; Classified Service; City Ser- vice; Confidential Positions; Competitive Class; Exempt Class; Non-Competitive Class; Labor Class; Practicability, and Rules.) validity of appointments in absence of 28, 39 classified and unclassified service distinguished 31, 32, 280 rules to be made for 38, 249, 264 to be extended to counties, etc 38, 42 to be consistent with Constitution and law 38 of State service subject to approval by the Governor 39 is a final and conclusive judgment until set aside 40, 109 erroneous classification not void 40, 109, 223 how corrected 40, 64, 65, 240 and taxpayer's action 40 power of the Legislature as to classification 40, 240 review of, by courts 41, 64, 66, 240 limit of power of Commission as to 42 rules for cities, to be prescribed by municipal commissions subject to approval of mayor and State Commission. . 46, 249-254 service to be arranged in four classes 60 scope of present and former acts as to 62 presumption in favor of classification made by Commission. . 65 former classification not conclusive on question of practi- cability 66 are all confidential positions exempt ., 71 and grading of clerJis, etc., under Higgins' bill 91 non-competitive class 104 no valid appointment inconsistent with, even though classi- fication is erroneous 109, 223 taxpayer's action to restrain illegal appointments made in ac- cordance with erroneous classification 223 saving clause as to former 224 repeal of any, inconsistent with " White " law 224 of a position as competitive after appointment is made, effect on right of transfer and promotion 280 subdivision of the service Into groups 296-300 to be based on duties and functions of positions 300 Classified service. (See City Service; Classification; Rules.) defined 31, 32, 280 the classified service 46 to be divided into four classes 60 what positions in, under present and former acts 62 pay-rolls of persons in, to be certified by Commission .... 108, 109 110, 111 Clerks. (See Courts; Regular Clerks.) Commission. (See Municipal Commission, and State Civil Service Commission.) defined 9 Common cotincil. (See Cities.) Commutation for board and lodging. (See Salary and Promotion.) regulation fixing 337 Comptroller. (See Disbursing Officers.) Compensation. (See Disbursing Officers, Pay-roll; Salary.) term defined 278 General Index. 413 ' Page. Competitive class. (See Certification; Confidential Positions; Eligible List; Examinations; Exempt Class; Practicability.) to be one of the four classes 60 what included In 72, 296 appointments to positions in, how made 72, 73, 301, 308 transfers or assignments to positions in, restrictions upon .... 73 lists of preliminary requirements, and subjects of examinations for, to be fixed by Commission 73 See Examinations. competitors for, to file applications 74, 305 examinations for, requirements of 72, 75, 306 fiduciary positions, bond may be required 75 positions in, when to be filled from judicial district 73 title of position in, to be appropriate to duties 73 exceptions from competitive examinations, viz.: temporary appointments in case of no eligible lists, appointment of persons of high and recognized attainments, temporary ap- pointments not to exceed one month 88, 303 occasional and temporary service of a professional, scientific or technical character 303, 304 protection from arbitrary removal given by former laws and by charter provisions 179, 188, 189-192, 205 subdivision into groups 296-300 vacancies in, filled after non-competitive examination if no eligible list results after competitive examination 304 reappointment to position in, after expiration of fixed term, 30, 304 eligible lists for 808 season positions 309 reinstatement to positions in 310 Confidential positions. (See Practicability; Exempt Class; Mon- eys and Bond.) a position actually confidential cannot be declared by State Commission not confidential 42 determination of Commission that a position is confidential, is a declaration that examination is impracticable 65 what positions should be deemed confidential 66, 67, 68 not limited to secret positions 67 employees and attendants in Court of Appeals occupy 68 assistants to district attorney are 69, 173 custody of money as an element in establishing qonfidential re- lations 69, 168 are all confidential positions exempt? 66, 71 persons holding, removable with out a hearing, even although they are veterans 129 overseer of the poor 168 excise agents 168 street superintendent 168 deputy superintendent of public buildings 168 fiduciary positions, not necessarily 168 water registrar i 169 fire marshals 170 warrant clerii in comptroller's oflice 170 clerk in city treasurer's office 170 secretary of fire department 171 subpoena servers 173 police court clerlis do not hold 175 collector of marlset fees 175 cashier in sheriff's office 175 what creates a confidential relation. 176 414 Gexeeal Index. Constitution. Page. constitutional provisions as to 8, 227-243. constitutionality of provision that Commission may make rules having the force of law 21, 22 power of legislature to create a body for the purpose of deter- mining the qualifications of public appointees 24 judicial functions of State Commission, not unconstitutional. . 25 as to restrictions upon power of appointment. .27, 231, 232, 233, 235 constitutionality of provision as to removal and appointment of municipal commissioners by State Commission... 50, 51 of provision authorizing State Commission to prescribe municipal rules 51 of provision requiring approval of municipal rules by State Commission 56 unconstitutionality of requirement that the highest be appointed 72, 75, 76, 231, 232, 233, 234, 235 of various early veteran acts 113, 114 provision of New York, as to tenure of officers 183 merit and fitness section in 227 present provision analyzed 227 merit and fitness defined (see Merit and Fitness.) 228 may be determined in one examination 220 extent to which examinations are to control 229 practicability 220 a constitutional power of appointment 231 to what extent can it be restricted 232, 236 constitutionality, provision as to veteran's performance (see Soldier, Sailor and Marine) 236 extent of and nature 236 exclusive of all other preferences 236 none until after examination 236 right to refuse to certify a veteran more than three times, quwre 237 constitutional duty of legislature to enact civil service laws. . . 237 as to necessity of legislation to give effect to constitutional provision 238 negative effect of Constitution 238 right of Legislature to provide for separate systems of civil service in different cities 238 constitutionality of former statutes 239 power of Ijegislature over classification 240 subject to review by the courts 240 effect of various provisions of United States Constitution upon New York Civil Service Act 241 upon Illinois Act 242 upon Federal Act 243 former New York Civil Service Act not repugnant to former Constitution 243 Contract of service. (See Employment.) Counties. county legislative officers in unclassified service 33 civil service rules extended to New York, Kings, Erie, Queens and Richmond 38, 388 exempt positions in 290-295 machinery for administering Civil Service Law in, is State Commission 42 inference from failure to classify service of 42 Veteran Law applies to 128 appointments to positions in, to be from residents of 281 subordinates in service of, to be exempt if paid wholly from fees of superiors 290 Gbnekal Index. 415 Page, Court officers and employees. (See Public Officers and Public Employees.) employees of the courts of General and Special Sessions, are they State or municipal officers 15 clerks of courts, exempt 61, 282 clerks of elective judicial officers, exempt 61, 282 Definitions of terms. used in statute 9, 277 deputies 163 merit and fitness defined 228 used in rules 277 season positions 309 Department. (See Heads of Departments.) what is a 35, 115, 116 Deputies. (See Exempt Class.) of principal executive officers, to be exempt 61, 282 who are? 63, 167, 168 term defined 163 powers and duties of 63 decisions as to certain officers claiming to be. 63 are removable without a hearing, even though they are veterans 129 Disbursing officers. (See Pay-Roils.) forbidden to draw warrant, or make payment of salary of any one on the classified service without certificate of Civil Ser- vice Commission 107, 250, 319-321 personal liability for violating foregoing 108 protected in payments made to persons appointed in accord- ance with classification, even though it is erroneous.... 80, 223 Discharge. (See Removal.) Dismissal from service. (See Removal.) entry as to, upon roster 106 Eligible lists. (See Applicants for Examinations; Appointments; Certification; Examinations.) term of eligibility 72, 73, 78, 79, 308, 333 new ones not to be created if old ones are in existence. . 73, 78, 308 appointments to be from most nearly appropriate. . 73, 85, 301, 308 right of Commission to refuse to certify an eligible. ... 74, 77, 305 rights of those upon, inferior to right of promotion, transfer, etc 72 'appointments from highest on list 72, 75, 76 the three highest to be certified 301 validity of emergency appointments when there is no list. . 76, 89 eligibility, date of 78 eligibility to be determined as of date of appointment 79 unimpeachable 79, 80, 81, 82 liow corrected 80 injunctions against certification from 82 appointments from, are valid, even though list is erroneous. 80, 223 temporary appointments, in absence of 88, 303 from 88, 89, 303 regardless of 304 416 Geneeal Index. EUgible lists — Continued. Page- place upon, must have been attained as a condition of transfer in certain cases 90, 313 of laborers. (See Registration.) veterans to be placed at tlie head of 112, 308, 333 ineligibles, although veterans, removable without a hearing. . 153 saving clause as to former 224 failure of person upon, to accept appointment, after what time to be deemed a declination 302 a person upon, who declines appointment, not to be certified again for same or less salary, except at his written request. . 302 in case it contains only one name, right of eligible to tempo- rary appointment 303 exceptions when appointments need not be made from 303 where a person of high and recognized attainments is to be appointed 303 provisional appointments in case there is no 303 temporary appointments, not to exceed one month, any one on eligible list may be chosen 303 acceptance of temporary appointment does not afCect one's standing upon 304 exception from, occasional and temporary employment of scientists, professional men and experts 304 in case none results from competitive examination, permanent appointment may be made after non-competitive examina- tion 304 right of incumbent to be reappointed at expiration of fixed term 30, 304 percentage to be received in order to attain a place upon. . 308, 332 names, in what order to be entered upon 308, 333 veterans' rights 308, 333 what information to be entered upon 333 certification from, in case of equal standing 308 •Commission to prescribe character of 308 designate what positions shall be filled from each 308 transfer of names from one to another 308 old merit lists continued as, until 308 season positions 309 reinstatement 310, 313 for promotions 310-312 how made up 312 certifications from 312 exceptions as to physicians to hospitals for insane. . . . 312 transfers 313 eligibility of candidates to enter examination, determinable in first instance by chief examiner 325 right to appeal from rating given 333 register for, how Iiept 333 what relative position upon, to be given if a person already upon an eligible list talies a new examination for the same place 334 copies of, not to be furnished except to appointing officers. . . . 334 open to public inspection 334 certiflcate from, when to be made 310-12, 334 by judicial districts 334 to positions as prison guards 335 foreman, Department of Public Works 336 court attendants, Appellate Divisions 385 what to be deemed the residence of one upon 335 information as to personal interests of those upon 336 General Index. 417 lEducation. (See Teachers.) Page. employees of boards of, In cities, are they city employees? 12 are they subject to Civil Service Lav? 12, 115, 187 (principals, teachers in public schools, etc., in unclassified ser- vice 32 is a board of education a " public department of the State " ? 115 veteran's right to appointment to positions under boards of 115 veteran's protection from removal if employed by a school board 161 lilective officers. (See Public OflBcers and Public Employees.) in unclassified service 31, 35, 255 ^Employees. (See Public Officers and Public Employees.) limployment. (See Appointments; Employee; Labor Class; Labor- ers. to be in accordance with Civil Service Law and rules 26 if not, employer is personally liable for compensation 26 contracts for services 10, 28, ISA, l87 to be for probationary term 32 to be classified pursuant to rules , 38 as laborers in cities 105 in institutions and departments 106 preference in 105 as to veterans ,, 105, 112, 113, 117, 118 willful and wrongful removal of veteran from 112, 121 examination of tnose seeliing 105 all cases of, to be reported to Civil Service Commission 105 to be entered on roster IC^ recovery of compensation during period of unlawful suspen- pension of 123 reinstatement necessary before recovery 124 employees and officers; is there a distinction as to their right to recover salary, if illegally removed? 126 recovery of damages from superior officer illegally removing one from 127 employees of boards of education, removal of, if veterans 151 securing employment for one in return for his vote, a misde- meanor 218 every, to be reported to Commission 318 Equity. (See Injunction.) Erie county. (See Counties.) Examinations. (See Eligible Lists; Examiners; Rooms and Ac- commodations; State Civil Service Commission.) rooms in public buildings to be used by State 'Commission for 19, 248 same to be heated and lighted , 19 record of, to be kept by State Commission 19 determination of examiners not reviewable by mandamus .... 27 not required of State laborers 38 rules to be made for 38, 98, 245, 306, 325, 326, 327 regulations to be made for 30, 325-331 for State service under control of State Commission 39, 2i6 281, 306 records of, to be preserved 39, 246 to be held at least once a year in certain places 39, 307 under what conditions called for 330 27 418 Geneeal Index. Dxaminations — Continued. Page- in counties, by whom conducted 42 power to impose examinations upon those holding positions when civil service rules are extended to those positions 42 rules for, in cities, to be prescribed by municipal commission- ers 46 in cities to be public 47, 245 subject to inspection by State Commission 47, 253 character and effects of to be reported 47, ii63 to be pursuant to rules and regulations 47, 48, 93 to be supervised by municipal commission 48, 84, 325 actual work not necessarily to be done by commissioners. . 50 promotion of policemen and firemen for bravery without. . 56 none required for exempt positions 61 competitive for all positions when practicable 72, 301 those graded highest in, to be appointed 72 term of eligibility (see Eligible Lists) 73, 333 new lists, when to be created 73, 330 when required of those seeking transfer, reinstatement or pro- motion 73, 90, 98, 313 character of 73, 245, 306, 330 preliminary requirements and subjects to be prepared by Com- mission 73, 306, 325, 380 information concerning, to be published 73, 325-330 advertisement and notice of 73, 307, 825-330 applications for, what to state, when filed (see Aplications), 74, 305, 328 certificates as to health, etc., character and educational qualifi- cations required 74, 305, 307, 328, 329 whom may Commission refuse to examine 74, 305 refusal to certify eligibles 74, 305 eligible lists, unimpeachable 79 conclusiveness of determination of Commission 81, 132 injunction against certification, because of fraud in (see Cer- tification) 82 re-examinations 83 physical 84, 307 under direction of Commission 84, 32& statements in application not 'a test of qualifications 85 exceptions from competitive 88-90, 303, 304 when required as a condition of transfer, reinstatement, or promotion 90, 98, 313 when promotion, instead of original entrace, should be held, 93, 310-312 to be determined by general rules 93 conclusiveness, under Federal rules, of certificate of superior officer as to efficiency of subordinate seeking promotion 97 •• equivalent," meaning of term considered 98, ©9, 100, 101 . " involving essentially different tests of qualifications " . . 98, 99 100, 101 may be required of laborers in cities (see Registration) 105 veterans to take 112 to go to the head of eligible lists 112, 113, 118, 119, 227 age and physical disability not to disqualify veterans 120 misdemeanor to obstruct right of 177, 249 to falsely mark , 177, 249 frauds in 177, 249 to personate another in 177 constitutional provision as to 227 extent to which, under the Constitution, are to control 229 Gbneeal Index. 419 i Xxaminatious — Continued. Page. merit and fitness determinable in one ^8 practicability of, as a test of merit and fitness 229, 237 text of former Blacli law establisliing dual system of exami- nations 260 no question in, to refer to political aflSliations 279 'appointments after non-competitive, in case no eligible list results from competitive ; 304 reappointment without, at expiration of fixed term 304 qualifications of applicants for 305 supplementary oral 306, 331 appointment of examining boards (see Examiners) 306, 836 a person who has failed in a competitive, not to enter another for nine months 307 papers, how rated 307, 330 percentage required to obtain a place upon the eligible list .... 308 330, 332 for promotion, how determined upon 310 who entitled to enter 310 elements of 311 ■ conducted by whom 311, 312 to be competitive 311 exceptions to foregoing 312 eligible lists after, how made up 312 non-competitive, who to enter 317 conducted by boards of examiners. 317, 318 lists may be established as 'a result of 317 what qualifications to be tested in 318 scope of 331 regulations as to powers and duties of chief examiner 325 appointment, salary, etc., of examiners 326 local boards of in State institutions 327 regulations as to applications 328 regulations as to 325-334 what circumstances justify holding new 330 notice of, to be mailed to applicants 330 applicants for, to be prompt 830 to present notification 330 to fill out a "Declaration " sheet 330 relative weights in, to be fixed before examination 331 ; oral to be stenographically recorded 306, 331 marl^ing and grading of papers 331-333 scale of 382 no one to go upon list who fails to attain average of 75 ... . 382 or fails to attain 60 in any subject 332 method of computing averages of weights 332 notice of result sent to candidate 332 right of competitor to Inspect his papers and ratings 333 right to appeal within 15 d'ays 333 regulations as to eligible lists (see Eligible Lists) 833 information as to, what will be given out by Commission 336 papers of a competitor to be exhibited only to him, his agent, or appointing ofiiccr to whom he is certified 387 copies of questions in former, not to be furnished unless pub- lished for general information 337 Xzaminers. (See Examinations; State CSvil Service Commission.) chief examiner to be appointed 18, 247 regulations as to powers and duties 325 salary of 18, 247 expenses of 18, 247 420 Geneeal Index. Examiners — Continued. Page, other examiners to be employed in the discretion of the Com- mission 18, 306, 31S, 325-327 not all to be members of same party 306 subject to chief examiner 325 persons in official service may be chosen 16, 247, 306 such persons to be paid their necessary expenses 18 limit of compensation of examiners 18 employed by municipal commissions entitled to reasonable com- pensation 53, 54 appropriations for m'ay be compelled 53 boards of, for non-competitive examinations may be appointed, 318 employment of technical or expert 325 various kinds of 326, 327 regulations as to 325, 326 compensation of State local examiners 327 chief examiner to Inspect city examinations 326 Exceptions from competitive examinations. (See Competitive Class, and Examinations.) provided for in statute , 88 Explanation. the right to make (see Removal) 188-206 Exempt class. (See Clerks of Courts; Confidential Positions; Deputies; Practicability; Secretaries.) to be one of the four classes 61 what positions included in Gl, 282 no position deemed to be in, unless specifically n'amed In such class in the rules 61, 282 reasons for putting places in, to be stated in the rules 61 tonly one appointment to positions in, unless a greater number Is mentioned in rules 61, 281 appointments to positions in, made without examination. . . 61, 205 history of statutes as to positions in 61 what positions in competitive class 72 list of positions which have been exempted 282-295 in State departments and institutions 282-280, 290 in the courts 200 local health officers 290 in the county service 200-295 subordinates paid wholly from fees of superiors 290 laborers in county service 200 assistant district attorneys who are counselors-at-law 291 in Erie county 291, 292 in New York county 292, 293 in Kings county 293, 294 in Queens county 293, 204 in Richmond county 295 Firemen. (See Policemen, and Soldiers, Sailors and Marine.) rights and benefits conferred upon, by law, not to be taken away by civil service rules 47, 253, 255 right to be promoted by his superiors, for bravery 56 protection of exempt, from arbitrary removal 128-176 character of proceedings to remove 180, 211 Foreman. (See Laborers; Registration.) who is? 46 Gbkekal Index. 431 r Torms. (See Index to Forms, page 401.) Traud (in Examinations). (See Oertifleation; Eligible Lists; Ex- aminations.) Grade. Page, promotions to be from next lower, when practicable (see Pro- motions) 90, 92 to be fixed according to salary 90, 300 statute (Hlggins bill) for grading 91 original appointments to be to lowest grade, when praticable. . 92 no person to be promoted who has not served six months in next lower grade 92 rules as to grades, being fixed by compensation, considered. ... 95 term defined 278 compensation of various grades 300 special rule as to Kings county 30O Group. appointments to be made from list most nearly appropriate for 73, 85 new list for, when created 73 term defined 278 manner in which competitive class is subdivided into 296-300 subdivisions of 28itt-300 general rule as to 299 power of commission to further subdivide so as to frame appro- priate examinations to test qualifications 30O request for certification, to refer to appropriate group 300 Heads of departments; in unclassified service 32 who are? 33 legislature's power to define 33, 35 Health officers. exempt. If compensation does not exceed $300 per annum, proviso 290 Higgins bill. (To grade and classify clerks, etc.) text of 91 Independent officer. (See Heads of Dep'artment.) Information. what will be given by State Commission, regulation as to 336 Injunction. (See Appointments and Removal.) court of equity will not issue, against illegal appointment or removal 31, 151 restraining 'Civil Service Commission from making certifica- tions because of fraud in the examination 82 Investigations . power and dmy of State Commission to make 19, 20, 50, 246 constituuonality of powers conferred upon State Commission . . 25 chief examiner to investigate complaints as to examinations, State or municipal 326 Judicial districts. (See Appointments; Certification; Eligible List.) ) when appointments to be by 73, 281 422 Geneeal Index. Kings county. (See Counties.) i IiaboT class. (See City Service; Laborer; Eegistration.) Page. what to include 104: former statutes as to 104 In cities, vacancies in, to be filled from registered lists 105 preference in appointment 105 registration lists, how prepared 105 applicants for regisration, to furnish evidence of competency. . 105 may be subjected to examination 105 preference of veterans for positions in 105, 112. 113 positions which have been classified as, regulation as to 338 Xaborers. (See Examinations; Foreman; Eegistration.) no registration or examination of State laborers. ... 38. Gl, li.jO, 2'.i0 who are U, lOi, 105, 278, 279, 338, 340 per diem compensation does not conclusively prove that one is a laborer 45 determinable from duties rather than from title of position .... 4,5 competitive examinations not practicable in selecting 45 unsliilled labor positions are in " labor schedule " even though not specifically mentioned 45 foreman distinguished from superintendent , . . . 46 who is a practicable mechanic'.' 46 in cities, to be registered (see Registration) 40, 47, 105, 254 may be subjected to examination 105 what laborers included in labor class 105 preference in employment, how determined 105 of veterans 105, 112, 113 registration lists of, how made up 105 for separate institutions and localities 105 protection of, from arbitrary removal, of veterans or exempt firemen 147 term defined as used in rules 278 pay-rolls to contain a statement that laborers upon it are em- ployed only at unskilled labor 320 Xegislative officers and employees. in unclassified service 32 city and county legislative oflicers 33 Xegislature. (See Constitution, and Legislative Officers and Employees.) power of, as to classification 40, 240 as to restricting remov'al 183, 184 to forbid political assessments 214. 215 duty to enact civil service laws 227, 237 KEandamus. (See Soldier, Sailor and Marine; Appointments and Removal.) to compel certification of pay-roll by Civil Service Commis- sion 108, 109, 110, 111 a remedy for refusal to give to veterans their preferene? in appointment "113, 132 as a remedy of veterans and exempt firemen for illegal re- moval 1 28, 132 to secure reinstatement, necessity of proving original le^al apix)intment 130 rights determinable by law in force at time or removal 131 to whom it is accorded, to procure reinstatement 131 Geneeal Indes. 433 Mandamus — Continued. Page. function of writ of 132 remedy by, as enlarged by veteran acts 132 not a means of reviewing determination as to merit and fitness, 132 wlien writ should be refused 133 not issuable to the Governor 133 issuable to Lieutenant-Governor and Speaker 133 writs to successors in office 134 necessity of demand before suing out writ 134, 1(55 precise relief to be demanded 134 notice must first be given of special rights claimed 135 what constitutes notice that a subordinate is a veteran 136 laches in seeking relief by 136 satisfactory explanation of delay 136 delay when law as to rights of relator is uncertain. . . laT, 138 each case dependent upon its own circumstances 138 to compel appointment or reinstatement where another is in office 139 the proper remedy, instead of quo warranto when the number of positions is not limited by statute 142 when positions are so numerous that it cannot be said that the relator was removed from any one of them 142 relief to be granted according to right rather than according to demand 143 peremptory, not issuable in first instance if there is an issue of fact 143 statements in opposing affidavits to be deemed true 144 conclusions of law not deemed to be admitted ; . . . 144 statements upon information and belief 144 alternative writ of, to try question of good faith of abolition of position 144, 157, 162 amendment to writ of 144 language of alternative and peremptory writs to agree 145 verdict of jury conclusive upon issues raised In 'alternative. . . 14S extra allowance in proceedings 145 relator seeking reinstatement must allege necessity of his services, if his position has been abolished 157 Meetings-. State Commission to meet in Albany once each calendar month, except August 20 Merit and fitness. (See Constitution; Examinations, and Practi- cability.) to be tested by competitive examinations, if practicable. .. 72, 227 examinations to test capacity and fitness 73 defined 228 may be determined in one examination 229 test of the former Black law, providing for dual system of examination as to 260 Mexican war veterans. (See Soldier, Sailor, and Marine.) former provisions as to 275 Military service. (See Civil Service, and Public Officers and Public Employees.) not included in civil service 9, 11 clerks in military departments 11 Minutes. to be kept by State Commission 19 Secretary 326 424 Geneeal Index. Page. Misdemeanor. (See Bribery; Preference; Political Contribution, and Political Action.) to refuse veteran his preference 112 to obstruct right of examination 177, 294 to falsely rate examination 177, 249 to impersonate another in examination 177 to give secret information 177, 249 acts with reference to political assessments, etc. . 217, 256, 257, 25& Moneys. (See Confidential Positions; Practicability, and Bond.) custody, and its effect upon the question of exemptions. . 32, 69, 70 74, 75, 253, 255, 307 when appointing officer may require a bond of a subordi- nate 74, 75, 307 as an element in establishing confidential relations ... 69, 70 financial liability of superior, when does it exist. . .' 86 Hunicipal commissions. (See City Service; Examinations; State Commission.) appointment of 46 duties of, to prescribe rules and classifications 46 qualifications of 47 rules prescribed by, when to take effect 47 examinations of, subject to inspection by State Commission.. 47 326 to report effects of examinations 47, 48 copies of rules 47 to have control of examinations and registration 47, 50 to be appointed by State Commission if mayor fails to ap- point 48 if removed 49 failure to procure approval of rules. State Commission to prescribe 48 to file roster as part of report 48 removal by mayor 48 by State Commission upon charges 48, 49 constitutionality of 50 procedure upon 48, 49 in case of, successors, how appointed 49 not obliged personally to conduct and rate examinations.... 50 member of, are public officers 53 examiners and subordinates employed by, to be compen- sated 53, 54 taxpayer may compel appropriation for 53 power to employ secretary and clerks 54 to prepare preliminary requirements and subjects of examina- tions (see Examinations) 73 to require applications to be filled out (see Applications) 74 to furnish blank applications 74 power to refuse to examine or to certify 74 to be notified of bond required 75 should establish general rules as to when vacancies are to be filled by promotion 95 to keep a roster of persons in city service 48, 107 bound by statements in pay-roll as to duties of persons borne upon it 106, 107 no power to restrict removals 129, 130, 179, 186 39'ew York county. (See Counties.) Genekal Index. 435 ITomiiiation. Page, promise of aid In procuring, In return for political services, misdemeanor 218 of a person for non-competltlve examination 317 Non-competitive class. (See Classification.) to be one of the four classes 61 defined 104, 314 non-competitive examination required of provisional ap- pointees 88, 303 when required as a condition of transfer, promotion or reinstatement 90, 98 what to Include 104 appointments to, how made 104, 317, 318 examinations for (see Examinations) 104, 246 position may be permanently filled after non-competitive ex- amination, in case no eligible list results from competitive examination 804 list of positions which have been classified as non-competi- tive 315-317 lists of persons eligible for, may be prepared 317 examining boards for 318 examinations for, what qualifications to test 318 Notice. of charges (see Removal). of causes of proposed removal (see Removal). OfSce. (See Appointment; Injunction; Public Officers, and Public Employees.) title to, determinable in what kinds of legal proceedings .... 31 public office, not a property right 60, 209 Ofllcers (Officials.) (See Public Officers, and Public Employees.) Pay-roll. (See Disbursing Officers.) certificate of Civil Service Commission to be attached 108, 11(^ 111, 250, 319-321 Commission's obligation to accept as true the statements in, as to duties of persons borne upon 107, 322 right of emergency appointees to collect compensation Ill payment of compensation to persons illegally appointed, a waste of funds Ill what appointees require certificate of Commission as to legal- ity of appointment i Ill taxpayer's action to restrain payment of compensation to one appointed in violation of law, but according to erroneous classification 223 form in which to be presented to the Commission 320 form of certificate of Commission 321 Policeman. right to be transferred under Greater New York charter 31 rights or benefits conferred upon, by law, not to be taken away by civil service rules 47, 253, 255 right to be promoted by his superiors for bravery 56 assignment of 91 permanent assignments are promotions 92 character of proceedings to remove 180, 211, 212 waiver of hearing 211 426 Gekebal Index. Page. Political action. (See Political Contributions, and Political Affili- ations.) no official to coerce another in his 178. 246, 256, 279 corruptly influencing, by promise of influence to obtain offlcial position, or for other corrupt consideration 218, 256, 258 Political contributions and assessments. no person in civil service under obligation to make 178, 246 256, 280 no person to appoint or remove another for making or failing to make 178 no official or employee to compel another official or employee to make 213 custodian of public building to forbid entry of person seeking to levy 213 sending of letter to public building requesting, is forbidden. . 213 no person to assist in making out a subscription paper or as- sessment or contribution, to be presented to persons in classified civil service 213 violation of any of foregoing, is a misdemeanor 213 federal statute as to 214, 215. 216, 217 power of Legislature to forbid political assessments and con- tributions upon those in official service 214. 215 the New York statute compared with early Federal statute, re- lating to 215 Political opinions. appointments and removals not to be influenced by 178, 279 official authority, not to be used to coerce 178 recommendations and questions not to refer to. . 178, 256, 257, 279 Practicability. (See Classification; Confidential Positions; Ex- empt Class.) positions to be put in exempt class if competitive and non- competitive examinations are not practicable 61, 72, 227 237, 239, 282 evidence tending to establish 64, 229 a question of law 64 reviewable by the courts 65 determination of Commission presumably correct 65 not conclusively determined by former classifications 66 not determinable by amount of compensation 66, 237 confidential positions 66 employees of Court of appeals, hold confidential positions.... 68 assistants to district attorneys, impracticable to select by examination 69 custody of moneys as an element in establishing confidential relations (see Moneys, and Bond) 69 a fair test of practicability 71 no preference to be given classes, as to practicability 71 are all confidential positions exempt? 71 if competition is practicable, position must be in competitive class 72 constitutional provision 227 extent to which examinations are practicable 237, 239 Preference (of Veterans). (See Soldier, Sailor and Marine.) in employment, generally 105 as to veterans 112 General Index. 437 Preference — Continued. Page. of veterans, as to appointment and promotion 112-118, 236 302, 808 proviso 112 age and physical disability not a disqualification 112, 120 refusal to give, a misdemeanor 112-121, 127 right of action 112, 113, 122 mandamus to remedy 113 distinction between present and former acts, as to 113 of appointment belongs to civil war veterans exclusively.. 113, 236 history of veteran legislation 113 constitutionality of various early veteran acts 113 has a veteran an absolute right to a probationary appoint- ment if there be only one veteran among those certified... 114 when appointing officer will not be compelled to fill vacancy . . 29 114 positions under boards of education 117 "in every public department," defined 116 " in military service," what constitutes 116 extends to team 117 intended only for subordinate positions 118 of retention, In case of reduction of force 118 none until after examination 118, 236 veteran's rights where there has been no examination 119 recovery of damages for failure to accord 122 duty of attorney-general toward veteran deprived of 122 proceedings by veterans to enforce preferential right of ap- pointment ; 130 that given by the Constitution, the only one that can be given 236 extent and nature of that given to veterans 236 text of early Veteran Laws 263-275 veterans entitled to, to be mentioned in certification 301 selection for appointment to be made from names certified, subject to constitutional preference of veterans 302 those having, to head eligible lists 308 Probationary term. all original appointments and employments to be for. . 32, 246, 309 must be a definite term 36 notice of discontinuance of service at expiration of, how and when given 36 purpose of 37, 229 not required of those in office when office is first brought within the classified service 37 determination of superior officer as to capacity of probationary appointee, not reviewable 37 failure to make absolute appointment is not removal 128 even in case of a veteran 128 necessity of 229 preference of probationers as to retention when reduction of force becomes proper 309 superior officer to make note of the efficiency of those serving under a 309 Promotion. (See Appointment; Assignment; Employment; Ex- amination; Grade.) to be in accordance with Civil Service Law and Rules 26 if not, promoting officer is personally liable for salary. . . 26 rules to be made concerning 38, 72, 90, 92, 301, 310, 311 in city service, governed by rules 46 428 Geneeal Index. ' ]?roiiiotion — Continued. Page, of policemen and firemen for bravery, by superiors, without Civil Service examination 5S appointments to be made by, instead of from eligible lists. . 72 92, 301, 310 ' positions to be filled by, so far as practicable 90, 227, 310 based upon what 90, 310, 311 commutation for board and lodging 337 restrictions upon 90, 310, 311, 312 vacancies to be filled by promotion from next lower grade. .. 92 246, 310 to be by successive grades 92, 310-312 permanent assignment is 92 police 92 practicability of to be determined by general nature of the position and not from special circumstances surrounding particular position at time It becomes vacant 93 conclusiveness under Federal rules, of certificate of appoint- ing oflBcer as to eflBciency of subordinate seeking promo- tion 97 entry as to, to be made on roster 106, 319, 320 preference In, given to veterans 112 age and physical disability not a disqualification . . . 112, 120 refusal to allow, a misdemeanor 112, 121 right of action therefor 112, 127 using influence to obtain, for another. In return for political action or vote, misdemeanor 218 constitutional provision as to 227 effect upon right of, by classification of position in competitive class after appointment is made 280 promotion examinations to be arranged by chief examiner... 310 requirements of 310, 311, 312 to be competitive 311 conduct of 311, 312 who may enter 310, 311, 312 examining boards for 311, 312 If impracticable, an entrance appointment from eligible list to be made 310 none from class to class, except 311 records of former service to be kept as a basis for 311 subject to inspection 311 weight to be given to 311 other tests of 311 appointing ofiicer to notify Commission of vacancies that can be filled by 311 weight to be given to seniority 311, 312 certifications for, how made 312 exception as to physicians in hospitals for insane 312 no recommendation as to, to come from any one but an offi- cial superior 312 none to be made except after issuance of a certificate by the Civil Service Commission 314 in case only one person desires to compete 312 in case all persons in a grade are recommended by their supe- rior for promotion 312 no examination, in case superior certifies that one person is peculiarly worthy of promotion 312 provisional appointments. (See Appointments.) failure to make permanent, not a removal, even In case of a veteran 152 Geneeal Index. 429 Tublio employees. (See Public Officers, and Public Employees.) Public officers and public employees. Page. who are? 10 status of those rendering services under contracts 10 employees of private institutions receiving State aid 10 military, as distinguished from civil 11 State, as distinguished from municipal 9, 11 employees of boards of education 11 employees of boards and commissions having corporate powers 13 status of persons appointed by State, but paid by muni- cipality 13 bridge tenders 13 special deputy county clerks in New York county.... 13 State officers, but appointed by city authorities 14 employees of the board of electrical control 14 employees of the courts of General and Special Sessions. . 15 inspector of health appointed by common council, a city employee 16 aqueduct commissioners appointed for a city by Legis- lature 16 warden of municipal prison 16 commissioners of New York and Brooklyn bridge 17 commissioner of jurors 17 health officer appointed pursuant to city charter 17 officers and employees of the State Civil Service Commission . . 18 duties of public officers under Civil Service Act and Rules. . 26, 245 appointments by, to be in accordance with Civil Service Law 26 liability of, for compensation of one appointed in viola- tion of Civil Service Law 26 Classified and unclassified service 31 offices filled by Legislature on joint ballot are in unclassi- fied service 31 legislative offices and employees are in unclassified service. 32 election officers in unclassified service 32 heads of departments 32 educators 32 appointees of Governor 32 teachers are not officers but employees 35 is there a distinction between, as to right to recover salary if illegally removed 126 distinction between as to protection from removal afforded by earl veteran laws 148, 149 Is there a distinction between, as to power of Civil Service Commission to restrict removal of 179, 183, 186 guilty of a misdemeanor, for promising to use Infiuence to obtain official position for another, in return for corrupt consideration 218 terms "public officer" and "public employee" defined.. 219, 220 cases distinguishing 220 Queens county. (See Counties.) Recommendations . not to refer to political affiliations 178, 256, 257, 279 'for promotions, not to come from anyone except superior 312 430 Geneeal Index. Page. Reduction. (See Appointment; Removal; Resignation; Transfer.) vacancy may be filled by, instead of from eligible list 72 conditions of 90 right to make a transfer, does not give superior the right to malie a reduction 98 what is a? 120, 121 penalty for reduction of a veter'an, in certain cases 112,120 Begistration of laborers. (See Examinations; Laborers, and La- bor Class.) not required of State laborers 38 in cities, to be provided for in rules 46, 47, 105, 264 lists of laborers in cities 105 for separate institutions and localities 105 applicants for, to furnish evidence of fitness 105 m'ay be subjected to examination 106 as to rights of veterans on lists 105, 112, 113 Begulations. (See Municipal Commission; Rules; State Civil Ser- vice Commission.) nature of State regulations 30 of cities, to be approved by mayor and by State Commission. . . 47 saving clause as to 224 repeal of, inconsistent 224 for carrying State rules into effect, to be prescribed 822, 325 right reserved to modify or to m'ake special 325 Segular clerks. (See Clerks, and Removal.) in New York city under charter, removable only after notice and an opportunity to make an explanation 188, 189 who are? 189, 190, 194 Beiustatement. (See Appointments; Employment.) to be in accordance with Civil Service Law and rules 26 if not, appointing officer is personally liable for compensation, 26 vacancy may be filled by, instead of by appointment from eligi- ble list 72k 301 restrictions upon 90 entry as to, upon roster 106, 31S>, 320 proceedings to secure, after illegal removal 132 right to, within a year 313 if abolished oflice is revived or re-established 314 Belative weights. (See Examinations.) Removal. (See Appointment; Mandamus; Reduction; Resigna- tion; Soldier, Sailor and Marine; Suspension.) refusal to make probationary appointment absolute, is not a. . 37 from office is not a destruction or impairment of a property right 60 power of legislature to make Civil Service Commission a tri- bunal for determining charges (50 when is a transfer a removal 98 to be reported to Civil Service Commission 105 veterans, preference as to retention if discharges become neces- sary ; . 118, 145 duty of attorney-general towards persons who allege their re- moval was illeg'al 122 recovery of salary during period of unlawful suspension 123 Geneeal Index. 431 ' IRemoval — Continued. Page. Is there a distinction between the rights of oflBcers and em- ployees illegally removed as to recovery of salary 136 suspension distinguished from 128 po^wer of removal in general unlimited 12y in certain cases limited 128 In cases of veteran and exempt fireman, causes for 129, 146 procedure upon 129 certiorari to revlevr 129 hurden of proof 129 right of veteran In first-class cities to be transferred to a simi- lar position, if his position is abolished 129 private secretary, and deputies, and confidential appointees, no restriction upon removal of, even if they are veterans. . . . 129 probationary and provisional appointees, no restriction upon removal of 129 power of, gener'al principles of law as to 129, 179, 183 implied in power of appointment, unless restricted. . . . 129, 182 ' can be restricted only by legislature 60, 139, 188^186 power of Civil Service Commission to promulgate rules restrict- ing 130, 186 certain charter provisions as to 130 of policemen and firemen 130 reinstatement after illegal, necessity of showing original legal appointment 180 • rights of removed party determinable by I'aw at time of 131 not, In general, a judicial act 131 mandamus to secure reinstatement, to whom accorded. . . . 129,131 132, 133, 134 remedy as enlarged by veteran acts 132 does not run against Governor 133 does run against Lieutenant-Governor and Speaker 133 laches In seeking reinstatement 136, 137, 138 delay because of uncertainty that removal was illegal .... 138 mandamus to compel reinstatement where another has been appointed In place of person who has been removed, 139, 140, 141 mandamus the proper remedy when the number of positions Is not limited by statute 142 when the positions are so numerous that it cannot be said that any- particular one of them had been filled by the relator 142 quo warramto proceedings to procure ouster 143 altern'atlve writ to try question of good faith of abolition of office 144 constitutionality of laws forbidding removal of veterans 146 laws restricting removal of veterans apply in all departments of all cities 145 apply to those In office at time of enactment 146 protects those in county service even though not classified, 146 of laborers, protection from, if veterans. 146 who Is a person " holding a position "...., 146 formerly no protection from, for laborers 147 protection from now extends to laborers 147 (jnly for subordinates 147, 148, 149 who are subordinates? 147, 148, 149 , of employees of school boards 151 charter provisions. Greater New York, concerning 151 what constitutes. a 152 absence without le^ve deemed a resignation 152 compulsory retirement upon a pension not a 152 433 General Index. Bemoval — Continued. Page. Ineligibles removable without a hearing 153 not authorized because another will accept less compensation . . 154 of veteran, what Is conduct inconsistent with position 154 what is incompetency 154 inadmissible testimony conclusions of law 155 after trral, must be upon charges made, not upon others 155 for temporary disability 156 where position is abolished for good reasons, no notice re- quired 156 good faith in abolition of positions 157 If position is abolished, relator seeking reinstatement must allege necessity of services l&l adding duties of abolished position to those of position held by non-veteran 158 veteran's preference as to retention 158 dismissal at expiration of temporary employment not a 160 temporary cessation of permanent worli no justification for discharge 160 abolition of position by legislature IW because of lack of appropriation 160 for economy 160 right of court to inquire into 162 right of veteran to demand assignment to similar positions in first-class cities 162 non-veterans not to be disch'arged to make vacancies 163 proceeeding for removal of a veteran, reviewable by certio- rari 165, 167 difference between present and former statutes as to hearings, 165 duty of veteran to demand hearing 165 of veterans, charges must be specific 166 action by veteran to procure reinstatement, burden of proof. . . 167 laches in certiorari proceedings . 167 of deputies 167 confidential subordinates 168-176 Laws of 1901, chapter 533, confirming rights of veterans against arbitrary 177 review of New York legislation as to restrictions upon power of IT.), 185 various forms of procedure fixed for 180 restriction upon in federal statute 180 Federal civil service rules restricting, have not force of law . . . 181 206-209 appointment of a successor is per se a removal of the incum- bent ' 183 power of, can be restricted only by the Legislature 183 extent of Legislature's power over 184, 186 need not be conferred in express words 183 New York constitutional provision as to tenure of office 183 tenure of employees 183 no power of removal if there is no power of appointment 183 Laws of New York 1898, chapter 186, requiring notice of causes of proposed removal and opportunity to make an ex- planation 185, 205, 257 related only to competitive class 186, 205, 257 State Rule XXIII requiring officers to file a statement of their re'asons for making removals, invalidity of 186. 322 lack of power in State Commission to restrict 186 employees as well as officers removable at pleasure of appoint- ing power 186 General Index. 433 XlemoTal — Continued. Page. employees under contract, when dischargeable 187 employees of boards of education 187 sections of Greater New York charter and former consolidation act restricting removals 187, 188, 190, 191 of regular clerks 188, 189-196 of heads of bureaus 189 who are? 189, 190 when notice of causes must be given ■ 191 must be specific 191 how delivered 161 , right to make an explanation. . 180, 185, 186, 188, 191, 200, 205 not the right to a formal trial 191, 105 may be required to be made to a deputy 192 a substantial proceeding 192 causes to justify removal must be substantial 193 the superior is sole and final judge of suflBciency and rea- sonableness of explanation 195 " a removal for the good of the public service " is not based on sufficient grounds 197 general allegation of incompetency insufficient 197 causes, what held sufficient 197, 198 superior capacity of another, not sufficient cause 198 failure to give information to superior 198 misbehavior in another office 198 no notice to be given where removal is not for personal unfit- ness 200 nor when office is abolished 200 nor when lack of mioney or work requires suspension of service 201 nor when reduction of force is necessary 202 What is a removal 37, 98, 129, 202 revocation of assignment 202 suspension of service , 202 retirement upon pension 203 demand for resignation 203 presumption of resignation 203 review by the courts of a removal of one who is entitled only to notice and to make an explanation 204 not reviewable when statute fixes no form of proceeding upon, 204 after trial, reversal for insufficiency of evidence 204 validity of, not determinable in action to recover salary 205 laches in seeking relief from illegal, by certiorari 205 mandamus does not lie to compel re-instatement when there is no power of appointment or removal 206 Injunctions against illegal, not granted 206, 207, 208, 209 federal civil service rules as to, have not force of law 206 of policemen and firemen 211 character of charges 211 waiver of hearing 211 record of, as evidence 211 propriety of a commissioner sitting as judge where charge is disrespect shown to him 212 prejudice of superior officer who hears the charges 212 text of former veteran acts as to 263-276 every separation from the service of whatever kind to be forth- with reported to the Commission 319 rule of Civil Service Commission as to removal from the roster of the name of any person found to be performing duties other than those for which he was examined 322 ^- 28 434 General Index. Bepeal. Page. of all laws, rules, regulations and classifications inconsistent with " White " law 224 list of acts repealed 225 Seport. duty of State Gommission to m'ake annual 20, 247, 270 what to include 20, 48 of municipal commissioners, what to include 47 to be accompanied by roster and rules 47, 48 may be called for at any time by State Commission 48 annual, of municipal commissioners, when to be made... 48 to state reasons for all exemptions 61 appointing ofiBcer to send to Civil Service Commission report of all appointments, removals, employments, or change in service 105, 318 Besidence and citizenship. (See Application; Appointment; Eligi- ble Lists.) regulation as to 337 what deemed to be the place of 338 designation. (See Appointment; Removal.) reduction of salary to bring about, a misdemeanor 113 entry as to, upon roster 106 absence without leave, when deemed a resignation 152 presumption of 203 Bichmond county. (See Counties.) Booms and accommodations. (See Examinations; State Civil Ser- vice Commission.) State Commission allowed use of public buildings for examina- tions 19 same to be heated and lighted 19, 248 Boster. to be Ijept by State and municipal commissions 105, 107, 319 what to show 105, 106, 250 reports of appointing oflScer with data for, what to contain . . . 318 Bules. (See Appointments; Civil Service Law; Classification, and Removal.) iState Civil Service Commission to prescribe 19, 38, 245 to have force of law 19 enforcement of, the subject of investigation 19 to be published in report 20 practical effects thereof to be stated in report 20 difference between present and former act as to Governor's power of prescribing, and as to scope and effect 20 habitual practice has not the force of law or of a rule 21 right of Legislature to delegate the power of maliing rules which have the force of law 21, 22 legal effect of Federial civil service rules as to removal 22 scope of rules 22, 245 in order to be valid, must tend to carry out the requirements of the law 23 Federal rules not law, but executive regulations 23 validity of appointments, in absence of 27 classification 28 when those prescribed by State Commission take effect 38 Geneeal Index. 435 Bulee — Continued. , Page, for civil divisions of the State, except cities, to be made wlien practicable 38, 322 notice of contents of, to be sent to appointing oflScers 39 to be published 89 established for certain counties — . 38, 388 amendments to take effect when approved by the Governor. . 38 for cities, to be prescribed 46, 262, 254 subject to approval of mayor and State Commission. . 47, 50 55, 156, 253, 255 constitutionality of foregoing provision 55 to govern appointments, employments, promotions and registration , 47 not to take avray rights of policemen and firemen 47, 56 to be published 47 copies of, to be filed with annual report to State Commis- sion 47 regulations for examinations to be made subject to. . . . 47, 246 prescribed by State Commission if municipal commission fails 48 constitutionality of foregoing provision 50 may be amended by State Commission, wheu 49 how 49, 50 ' how proved, in action at law 55 how construed 56 should be made fixing the cases in which vacancies should be filled by promotions 94 power of New York Commission to make rules concerning re- movals 130 invalidity of State (XXIII) and municipal, restricting removals, 186 Federal rules as to removal have not the force of law 206 DO injunction against removals in violation of 206 saving clause as to former 224 repeal of those inconsistent with " White " law 224 violation of, good cause for dismissal from service 279 administrative regulations for carrying rules into effect, to be prescribed 322 information as to application of, to personal interests 336 Salary. (See Promotion; Disbursing OflBcers; Pay-RoU.) increase in, when a promotion 90, 96 none to be paid to one whose pay-roll is not certified by Civil iService Commission 108, 109, 110, 111, 319-321 recovery of, in case of illegal removal. . 122, 123, 124, 125, 126, 205 when recoverable from officer making illegal appointment. . 26, 110 when recoverable from officer making illegal removal, 112, 122, 127 using influence to obtain increase of, for another in return for political action or vote, misdemeanor 218 not to be increased within six months after appointment over that offered to one who has declined appointment 302 every change in, to be reported to Civil Service Commission. . 319 commutation as to board and lodging , 337 Saving clause. as to former rules, regulations and classlflcatlon 224 Schools. (See Education.) Season positions. (See Appointments.) defined 309 right of incumbent of, during former season, to be reappointed. . 309 436 General Index. Secretary. (See Pay-Roll; State Civil Service Commission.) Page. of municipal commissions entitled to compensation 54 of officers, boards and commissions authorized by law to ap- point a secretary, to be put in exempt class 61 term construed 62 private secretaries, removable without a hearing, even though they are veterans 129 of State Commission, regulations as to powers and duty 326 assistant to (see Pay-Koll) 326 Similar positions. (See Transfers.) term defined 102 Soldier, sailor or marine. ( Honorably discharged. ) preference in appointment and promotion and employment (see I>reference) 112, 178, 236-239 age and physical disability no disqualification 112, 120 provided they pass examinations.. 112, 113, 118, 119, 236, 333 belongs exclusively to Civil War veterans 113 history of legislation as to 113 constitutionality of law of 1887 as to 113 law of 1884 as to 114 reduction of compensation, when a misdeme'anor 113, 120 refusal of preference to, is a misdemeanor 113, 121 right of action therefor 113, 122, 127 mandamus to remedy 113 constitutional preference of, exclusive of all others 236 special Brooklyn statute as to 113 scope of laws as to, under former Constitution 114 is the appointment of a veteran required, if there be only one veteran among the three highest highest on eligible list. . . . 114 preference of, to positions under boards of education 115 preference as to employment includes team 117 preference of, as to employment as laborers 105 " in the military service," who is 116 preference relates only to subordinate positions 118 in case discharges are necessary 118 over those of higher standing 118 the determination of appointing officer as to capacity, when final 119 reduction of, what constitutes 120, 121 duty of Attorney-General towards, in ease of alleged illegal removal 122 right to recover salary during period of illegal removal 123 after illegal removal, reinstatement is necessary before recov- ery of salary 124 distinction between officers and employees as to right to re- cover salary during period of illegal removal 126 what constitutes removal of 128 suspension of, when not a discharge 128 law restricting removal of (see Removal) 128 causes for removal of 128 proceedings upon removal of 128, 144, 165 right to be transferred to similar position in first-class cities, if position which is held is abolished 129, 162, 163 probationary appointee, removable 129 provisional appointee, removable 129 upon proceeding to procure reinstatement must prove original legal appointment 130 rights of, determinable by law in force at time of removal, 131 Geneeal Index. 437 Soldier, sailor or marine —Continued. Page, to whiOm Is mandamus accorded as a means of procuring re- instatement (see Mandamus) 131, 132 cannot secure review of determination of Civil Service Com- missioners as to merit and fitness 132 must give notice of special rights claimed before reinstatement can be secured 135, 168 Vfhat constitutes notice tliat a subordinate is a veteran 136 laches in seeking relief from illegal removal 136, 137, 138 mandamus to compel reinstatement of, where another has been appointed in his place 139 mandamus is the proper remedy when number of positions is not limited by statute 142 mandamus is the proper remedy where positions are so nu- merous that relator cannot be said to have filled any par- ticular position 142 quo warranto proceedings to oust a usurper 143 constitutionality of laws protecting, from removal 145 scope of early veteran laws 145 veteran laws are applicable to cities 145 those in county service protected 146 those in oflSce when statute is enacted as well as those subse- quently appointed are protected from removal 146 who " hold a position " ? 146 protection of those who are laborers 147 only subordinates protected 147 who are subordinates 147 rights of, who are employees of school boards 151 those employed by cities at expense of private corpora- tions 151 Greater New York charter provisions affecting 151 Ineligibles removable without a hearing 153 " conduct inconsistent with position " considered 154 Incompetency, what is 164 removal of, must be upon charges preferred, not upon others, 156 temporary disability 156 'abolition of position, good faith in 157, 160, 162 relator who seeks reinstatement must allege necessity of services 157 adding duties of abolished position to those of a position held by a non-veteran , 158 preference, as to retention in case of a reduction of the force 158 dismissal of, at expiration of temporary employment, not a removal 160 temporary cessation of permanent work, does nqt justify removal of 160 for lack of appropriation 160 by Legislature 160 right of court to inquire into 162 right of, to be transferred in first-class cities to a similar position 163 faithful non- veterans not to be removed to make a place for. . 163 proceeding to remove, reviewable by certiorari 128, 165, 167 difference between present and former acts as to hearing given to 165 charges against, must be specific 166 action by, to procure reinstatement, burden of proof 167 exceptions from protection from removal — deputies, private secretaries and confidential appointees 167 438 Geneeal Index. Soldier, sailor or marine — Continued. Page. Laws of 1901, chapter 533 (the Ellsworth bill), confirming rights of 177 constitutional provision as to preference 227 extent and nature of constitutional preference in appointment, 236-240 right of Commission to refuse to certify, more than three times, 237 text of former veteran acts 263-275 history of veteran legislation 263^275 certification must indicate who are 301 appointment from certified names, to be made subject to rights of 802 detailed information as to enlistment and service required in application from, for examination 328 certificate of honorable discharge or other satisfactory evi- dence to be presented with application 329 Spanish-American war. (See Soldier, Sailor and Marine.) protected from removal except after a hearing 112, 113 State Civil Service Commission. " State Commission " defined 9 commissioners, appointment of 17, 2145 qualifications of 17, 245 to hold no other ofilcial place 17, 246 removable at pleasure of the Governor 17, 246 vacancy, how filled 17, 246 salary of 17 expenses to be paid 17, 245 not more than two to be of the same political party. . 17, 245 constitutionality of this requirement 17 subordinate officers and employees of 18, 247 not to authorize expenditure in excess of appropriation . . 18 to be furnished with rooms in the State Capitol 19 power to order necessary postage, stationery and printing 19 entitled to the use of public buildings for holding examinations, 19 powers and duties of 19, 245 to prescribe and enforce rules 19, 245 to lieep minutes 19, 246 to malse investigations 19, 23, 246 to subpcena same as conferred on legislative committee or by code upon a board or committee 20, 25, 223 fees of witnesses before 223 to m'ake annual report 20, 247 meet in Albany monthly 20 constitutional power of the Legislature to create a body for the purpose of ascertaining the qualifications of public ap- pointees 24 power to Investigate, not unconstitutional 25 power to compel production of books and papers 25 when empowered to appoint municipal commissioners.... 48, 49 have power of approval over municipal rules 48 when empowered to make municipal rules 48 may require reports from time to time from municipal com- missioners 48 must include abstract of municipal reports in its annual report, 48 to receive a copy of municipal roster 48 when empowered to remove a municipal commissioner 48 when empowered to fill vacancy in municipal commission .... 49 when empowered to !amend municipal rules 49 Genebal Index. 439 fitate Civil Service Commission — Continued. Page, to establish preliminary requirements and subjects for exami- nations 73 to advertise examinations 73 to require applications for examinations to be filled out 74 to furnish blanl^ forms for applications 74 power to refuse to examine or to certify 74 to be notified of amount of bond required by appointing officer, 75 should establish general rules 'as to when vacancies are to be filled by promotion 92 to Iceep a roster of all persons in State service 106, 107 bound by statements In pay-roll as to duties of persons borne upon it 107 power as to restrictions upon removals 120, 130, 17&, 186 conclusiveness of determination as to result of examination. . 132 saving clause as to tenure of former ., 224 to prescribe regulations for carrying rules into effect 322 to establish forms for reports, certificates, records and returns, 323 State service. defined 9 Subdivision ( of group ) . term defined 278 Subscriptions. (See Political Contributions.) Suspension of competition. (See Exceptions from Competitive Examination.) Taxpayer. may by mandamus compel common council to malse appropria- tion for Civil Service Commission 53 payment of compensation to person illegally appointed, a waste of funds, taxpayer's action lies Ill may maintain action to recover from disbursing officer, moneys paid to one whose pay-roll has not been certified by Civil ■Service Commission 108 right of, to bring action to restrain payment of compensation to person holding office, in violation of law, but in accord- ance with erroneous classification 223 Teachers. (iSee Education.) not public officers, but employees , 35, 221 Temporary appointments. (See Appointments.) ■" Three years " service. (See Transfer.) effect of, considered 73, 102 Towns. (See Civil Divisions.) veteran law as to removals, applies in 128 Treasurer. (See Disbursing Officers.) aVansfer. (See Appointments; Assignments; Rules.) under Greater New Yorli charter 31 vacancy may be filled by, instead of by appointment from eligible list 72. 301 restrictions upon 73, 90, 97, 98, 313 440 Geneeal Index. Transfer — Continued. Page. when authorized , 313 of policeman, when Invalid 86 what Is a 98 right to make, not a right to make a reduction 98 when does it constitute a removal 98 from municipal to State positions, and vice versa 103 from county to city, or State, and vice vers'a 103 contemplated by statute and rules 98 all cases of, to be reported to Civil Service Commission for entry upon roster 106, 319 effect upon right of, if position is classified as competitive after appointment of incumbent 280 names may be transferred from one eligible list to another. . . 308 cases of, from class to class, to be reported to Legislature 313- tJnclassifled service. what positions in 31, 32, 250, 252, 253, 255 Vacancy. (See Appointments.) when appointing ofllcer obliged to fill 29, 114 every, to be forthwith reported to the Commission 319 Commission cannot give information as to 336 Veteran. (See Soldier, Sailor or Marine.) term, as used in rules, defined 278 Villages. (See Civil Divisions.) veteran laws as to removal apply in 128 Witnesses. powers of iState Commission to subpoena 20, 259 fees of, not payable in advance 222 all persons in public service to give inspection of books and records to Civil Service Commission 223, 259 shall attend and testify whenever required 223, 259 [Whole number of pages, 484.] fe". rs