of the right of appointment to a person so graded highest would transfer the power of appointment from the local authorities to the civil service commission, and thus completely nullify the provision of the Constitution conferring the power of appointing city officers upon the local authorities of the municipality. Hence, when the fitness of a number of candidates has been ascertained by competitive examination, the local authorities must be left free to appoint such person from that list as in their discretion and judgment they deem most capable.'

§ 398. Offices provided for or regulated by the Constitution. When the Constitution of the State confers upon an officer the power to select and appoint his subordinates, that officer has the exclusive power to determine as to the propriety of such appointments, and the efficiency and qualifications of the proposed appointees; and the legislature cannot, by civil service law or other statutory enactment, restrict or limit the power and discretion which is conferred upon that officer by the Constitution. In New York, however, a constitutional provision has been adopted declaring that all appointments 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 by competitive examinations. And under such constitutional direction, power of appointment conferred by the Constitution itself upon an officer of the State becomes subject to the constitutional direction that merit and fitness shall be ascertained by competitive examination.* If the Constitution provides that when the duration of an office is not provided for by the 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, only the legislature has power

3

People v. Mosher, 163 N. Y. 32, aff'g 45 N. Y. App. Div. 68; People v. Scannell, 63 N. Y. App. Div. 243, 247. As to this provision of the Constitution of New York, see ante, § 101.

2 People v. Angle, 109 N. Y. 564; People v. Henry, 47 N. Y. App. Div. 133. In Illinois, the provision of the Constitution of that State defining an "office" is held to apply only to State offices, and, so far as it operates as a restriction upon the mode of appointment, has no application to offices under city governments. People v. Loeffler, 175 Ill. 585.

N. Y. Const., 1894, art. v. § 9. This provision is mandatory with refer

ence to the duty imposed thereby, and the enforcement of existing laws complying with and tending to further the objects sought; but as to the machinery necessary for the conducting of a competitive examination, its execution is to that extent dependent upon statutory enactments. Where no statutory provision has been made for competitive examinations it has no applicability. Chittenden v. Wurster, 152 N. Y. 345, 354. See also People v. Wilson, 12 N. Y. Misc. 174, aff'd 146 N. Y. 401; People v. Roberts, 91 Hun (N. Y.), 101, aff'd 148 N. Y. 360.

People v. Roberts, 148 N. Y. 360, aff'g 91 Ĥun (N. Y.), 101.

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; the power to so rule cannot be delegated to a civil service commission, nor the term of an office be prescribed by its regulations.'

§ 399., Powers and Duties of Civil Service Commissioners. A civil service commission, created by statute for the purpose of classifying and regulating appointments to public office or employment, is a part of the machinery devised by the legislature for the administration of public affairs. Its powers are administrative or executive in their nature and not judicial, even when it is given power to investigate and take testimony to enable it or the legislature and the strictly executive officers of the State and of municipal bodies to perform their duties.2 Hence the action of the commissioners in classifying positions as subject to, or exempt from, competitive examination comes within the principle that the discretionary acts of public officers, acting within the authority delegated to them, are not subject to judicial control, and such classifications will not be reviewed or controlled by the courts, unless there is a manifest abuse of discretion, and an open intention to pervert the directions of the

1 People v. Cram, 164 N. Y. 166; rev'g 50 N. Y. App. Div. 381.

2 People v. Collier, 175 N. Y. 196, rev'g 79 N. Y. App. Div. 636; People v. Milliken, 185 N. Y. 35, aff'g 110 N. Y. App. Div. 579; People v. McWilliams, 185 N. Y. 92, rev❜g 100 N. Y. App. Div. 176; Dill v. Wheeler, 185 N. Y. 106, aff'd 100 N. Y. App. Div. 155; People v. McAdoo, 113 N. Y. App. Div. 770; People v. Burt, 65 N. Y. App. Div. 157, aff'g 170 N. Y. 620. When by statute the civil service commission of a State is given authority to make investigations concerning, and to report upon, all matters touching the improvement and effect of the civil service act and the rules and regulations prescribed thereunder, and is required to make an annual report to the governor for transmission to the legislature, no duty is imposed upon the commissioners to make any determination either judicial or otherwise, but merely to investigate the enforcement and practical operation of the statutes and to report their action, with such suggestions as may occur to them as a result of the investigation for the effectual accomplishment of the intent of the law, to the governor for transmission to the legislature. The duties

of the commissioners in making this investigation are administrative and not judicial, and a writ of prohibition will not lie to restrain the commissioners from investigating, since that writ is addressed to subordinate courts and inferior tribunals only to restrain them from exceeding their jurisdiction, and cannot be issued to prevent action by legislative or administrative bodies. People v. Milliken, 185 N. Y. 35, aff'g 110 N. Y. App. Div. 579. A statute authorizing civil service commissioners to prescribe, amend, and enforce rules for the classification of the offices, places, and employments in the classified service of a city, and for appointments and promotions therein and examinations therefor, confers powers which are in their nature administrative rather than judicial. People v. Burt, 65 N. Y. App. Div. 157, aff'd 170 N. Y. 620. A statute authorizing the mayor of city to prescribe civil service rules and employ suitable persons to make inquiries and examinations and prescribe their duties, authorizes the mayor to appoint a secretary for the civil service commission appointed by him under the act. Kip v. Buffalo, 123 N. Y. 152, aff'g 7 N. Y. Supp. 685.

Constitution and statutes. Similarly, when power is given to civil service commissioners, or to examining boards, acting under their direction, to test the qualifications of applicants for public office, the method of such examinations with the result arrived at, necessarily rests within their discretion and judgment upon the examination had, and is not a judicial determination of any question presented to them in such a sense that it may be reviewed by the courts on certiorari or by mandamus or otherwise. So, too, when, by statute, the civil service commission is required to determine whether the duties of the newly created positions are similar to those performed by the incumbent of an abolished position, and, if they are, to certify the name of the incumbent of the abolished position for appointment to the newly created position, the duty devolved upon the commission involves the exercise of judgment and discretion, and cannot be controlled by the courts."

The determination of the commissioners in the exercise of this discretionary power is final and binding upon all affected thereby. The appointing officer has no right to go behind the report of the commissioners or examining board as to the qualifications of applicants for office examined, and to refuse to accept it on the ground that the eligible list as presented by the commissioners or examining board (upon whom the responsibility rests of determining who should be upon such eligible list), does not comply with the provisions of the statute applicable to making up such list. Their determination also fixes the status and determines the rights of the aspirants for office or position upon whose qualifications they have

1 People v. McWilliams, 185 N. Y. 92, rev'g 100 N. Y. App. Div. 176; Dill v. Wheeler, 185 N. Y. 106, aff'g 100 N. Y. App. Div. 155; People v. McAdoo, 113 N. Y. App. Div. 770.

2 People v. Roosevelt, 19 N. Y. App. Div. 431; Matter of Allaire v. Knox, 62 N. Y. App. Div. 29, aff'd 168 N. Y. 642; People v. McCooly, 100 N. Y. App. Div. 240.

3 Matter of Donovan v. Cantor, 89 N. Y. App. Div. 50; s. c. 179 N. Y. 527.

People v. Sheffield, 24 N. Y. App. Div. 214; People v. Stratton, 79 N. Y. App. Div. 149, aff'd 174 N. Y. 531; Burke v. Holtzman, 110 N. Y. App. Div. 564; Matter of Lazenby v. Civil Service Com'rs, 116 N. Y. App. Div. 135. See also People v. Cobb, 13 N. Y. App. Div. 56; People v. Knox, 66 N. Y. App. Div. 517. An appointment made without the prescribed examination is

4

illegal. Even a non-competitive examination must precede the appointment. The appointment cannot be made subject to examination. People v. Ingham, 107 N. Y. App. Div. 41, aff'd 183 N. Y. 547. The civil service board cannot dispense with the physical examination required by the civil service rules, and an appointment without such examination is illegal. People v. Gleason, 32 N. Y. App. Div. 357. When the commissioners have certified the eligibility of a person and he has been duly appointed, he can only be removed in the manner provided by law, and the commissioners cannot refuse to certify his pay-roll on the ground that he was not in fact eligible at the time when he was appointed. Matter of Lazenby v. Civil Service Com'rs, 116 N. Y. App. Div. 135.

passed. When the qualifications of an applicant for examination have been ascertained, he becomes entitled to be placed upon the eligible list, if he has passed the examination, and he will not be deprived of any of his rights through the failure of the examining board to place him on the eligible list. From the time when he passes his examination, his application for appointment must be decided just as if his name had been placed on the eligible list.' When the examining body has once passed upon the qualification of a candidate and has placed him on the eligible list, its powers are at an end, and it cannot revise its determination and, without notice to the candidate or any attempt to reopen the case, strike him from the list of persons eligible to appointment on the ground of advanced age and feeble physical condition. The civil service commission has only such power as the statute specifically confers upon it, or as such as can be necessarily and reasonably inferred for the purpose of enabling it to faithfully and fairly carry out the work committed to it.3

People v. New York City Civil existing by legislative act. Hence it Service Board, 13 N. Y. App. Div. 309. can provide a separate registration See also People v. Knauber, 163 N. Y. list for each borough of the city of New 23, aff'g 43 N. Y. App. Div. 342. Under York. People v. Shea, 73 N. Y. App. a civil service law which upon its face Div. 232, 239. But it cannot divide is intended to provide a scheme for the each borough into a number of smaller original entry of persons to the civil districts. People v. Shea, 73 N. Y. service, and their promotion, transfer, App. Div. 232. A statute which rereinstatement or reduction, a com- quires the head of the department to petitive examination is not required file a statement of his reasons for a refor the retention of persons in office whose term has expired, at all events after such persons have already submitted to an examination as to merit and fitness under previous enactments. People v. Knox, 45 N. Y. App. Div. 537. But the fact that a person was eligible to appointment at the time he was placed upon the eligible list does not entitle him to appointment if by statute subsequently enacted he becomes ineligible for any reason, e. g., age, prior to an actual appointment. People v. Scannell, 49 N. Y. App. Div. 244. 2 People v. Cobb, 13 N. Y. App. Div. 56. See also Matter of Lazenby v. Civil Service Com'rs, 116 N. Y. App. Div. 135.

moval with the civil service commission and gives that commission power to review his action on appeal by the removed officer and to approve the removal or reinstate the officer does not confer on the civil service commission any power to remove on its own initiative. Easson v. Seattle, 32 Wash. 405. The provision of the Illinois Civil Service Act that all applicants for positions in the classified service shall be subjected to examination, which shall be free, with "specified limitations as to residence," means limitations as to residence imposed by the rules of the commission and not limitations as to residence prescribed by statute for the qualifications of officers. Powell v. People, 121 Ill. App. 474. Fraudulent substitution of examination papers, and power of civil service commission to reject them. See People v. Knox, 78 N. Y. App. Div. 344. Indictment of civil service commission for illegally certifying eligibility of applicant for position without competitive examination. Morrison v. People, 196 Ill. 454.

Without express statutory authority, the civil service commissioners have no power of supervision over the performance of the duties of an office. Hence, although by statute it is provided that an officer or employee shall not be paid, unless the pay-roll or account for his salary shall bear the certificate of the civil service commission that he has been appointed in pursuance of law, and of the rules made in pursuance of law, the commission cannot withhold its certificate for any reason connected with the performance of the duties of the office or employment.' When expressly authorized by statute to classify offices and positions to be filled, and to adopt rules and regulations, the classification and rules made by a civil service board, have the power and force of laws and are binding upon all appointing officers." But the rules must conform to the provisions of the statutes relating to the appointment and removal of officers. If there is any conflict, the statutory requirements will control.3

1 Matter of Doyle v. Knox, 67 N. Y. App. Div. 231. The relator was appointed janitor of a public school at a total salary for all janitorial services of $1880 per annum. Persons were employed by the relator to render services in sweeping, scrubbing, and cleaning this school. There was a position in the classified civil service known as "cleaner. The civil service commission refused to certify the pay-roll containing the relator's salary, and it was held that whether the persons employed by the relator to sweep and clean should be considered as occupying positions in violation of the civil service law or not, that fact did not affect the validity of the relator's appointment or deprive him of his office, and that he was entitled to mandamus directing the commission to certify the pay-roll. Matter of Doyle v. Knox, 67 N. Y. App. Div. 231, 321.

2

Opinion of the Justices, 145 Mass. 587, 590; Attorney-General v. Trehy, 178 Mass. 186, 188. Power conferred on a civil service commission to make rules for the classification of positions and for appointments and promotions therein, does not authorize the commission, fix or regulate the salary to be paid, and the fact that the commission has graded certain positions according to the salary paid does not entitle the persons holding these positions to such salary, when the duly authorized municipal authorities have fixed their

salaries at smaller amounts. Powell v. York, 65 N. Y. App. Div. 421. See also People v. Knox, 58 N. Y. App. Div. 541; aff'd 167 N. Y. 620. But the court cannot take judicial notice of the rules and regulations of the civil service commissioners of a city. People v. Dalton, 46 N. Y. App. Div. 264. When a question comes before the court as to the classification of a position and a removal therefrom under the rules and regulations of the civil service commission of a city the presumption is that the classification is proper when the rules and regulations are not brought before the court in competent form. People v. Dalton, 46 N. Y. App. Div. 264.

3 People v. Kearny, 164 N. Y. 64; aff'g 49 Ñ. Y. App. Div. 125; Matter of Murphy v. Keller, 61 N. Y. App. Div. 145; People v. Scannell, 62 N. Y. App. Div. 249. When, by statute, removals from office may be made upon giving an opportunity to explain and filing and entering on the records of the department a statement of the reasons therefor, a rule of the civil service commission requiring a statement of the cause of removal to be filed with the commission, a copy thereof furnished to the person sought to be removed, and opportunity afforded to explain in writing is invalid as prescribing additional limitations on the statutory authority to remove. People v. Scannell, 62 Ñ. Y. App. Div. 249.