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that there was a plain violation by the commission of its duty to classify as competitive an office which was clearly and manifestly so, there should be a remedy in the courts. But there is necessarily a large debatable field as to cases within which there will be great differences of opinion, even among the most intelligent and fairminded men, and as to this field the judgment of a court should not be substituted for that of the commissioners. The action of the civil service commission is subject to judicial control; but that control is a limited and qualified one to be exercised by mandamus. If the position is clearly one properly subject to competitive examination, the commissioners may be compelled to so classify it. On the other hand, if the position be, by statute or from its nature, exempt from examination and the action of the commission be palpably illegal, the commission may be compelled to strike the position from the competitive or examination class, though in such case redress by mandamus would often be unnecessary, as a valid appointment could be made notwithstanding the classification. But where the position is one as to the proper mode of filling which there is fair and reasonable ground for difference of opinion among intelligent and conscientious officials, the action of the commission should stand, even though the courts may differ from the commission as to the wisdom of the classification. In other words, if the classification of the commission clearly violates the Constitution or the statute, mandamus should issue to correct the classification. If the action

the classification of every officer or employee in the service of the State, or its political subdivisions, must be determined by this court, for if the classification presents a question of law reviewable by the Supreme Court, that question survives in this court. Surely such a result was never contemplated by the framers of the Constitution, or by the legislature when it enacted the civil service laws. It would cast upon the courts a burden which would not only be difficult for them to bear, but which they are by no means the officers best qualified to discharge. The proper classification of a part of the civil service depends in no small degree on the practical operation of the classification. A priori arguments must often yield to actual experience. Take the present case. If we should affirm the action of the civil service commission and it should appear in the future that the classification failed to secure competent officers, surely the classification

should be changed. Should the action of the commission be again brought before us for review? It appears that in some of the cities of the State similar offices to that sought by the relator are filled by competitive examinations, and in others not. If the question of the classification is always a judicial one, then there must be the same classification everywhere, for there must be at least some degree of finality in judicial determinations.

If the classification of the commission clearly violates the Constitution or the statute, mandamus should issue to correct the classification. If the action of the commission is not palpably illegal, the court should not intervene. The foregoing views lead to a retraction of those expressed by us in People, ex rel. Sims, v. Collier (175 N. Y. 196), where we held that the remedy was not by mandamus, but by certiorari." See Index, Certiorari, Mandamus, as to respective functions of these writs.

of the commission is not palpably illegal, the court should not intervene.1

§ 403. Confidential Positions; Rule in New York. Under the view that as the constitutional provision of the State of New York makes competitive examinations mandatory only "so far as practicable," the determination of the question whether such an examination is practicable, presents a question of law for the determination of the courts, it was further held by the Court of Appeals that competitive examination is not practicable as to the class of positions which may fairly be designated as confidential. During the nine years which elapsed between the time of this decision and the date of the later decisions of the Court of Appeals,3 holding that the classification of positions as competitive or non-competitive is an administrative function, involving the exercise of judgment and discretion by the commissioners and subject to judicial control only in case of a manifest violation of the constitutional mandate, the court has many times considered what are to be deemed confidential positions, and has pointed out their characteristics. In these decisions it has been declared that positions in the exempt confidential class are not limited to those which are strictly secret. Most of the public offices are conducted openly, and the citizen has the right to know what transpires. The strictly secret positions authorized by law are comparatively few, and are of less importance than those in which the appointee is necessarily entrusted with the performance of some of the executive functions of his chief. If the duties are not merely clerical, and are such as especially devolve upon the head of the office, which, by reason of his numerous duties, he is compelled to delegate to others, and which, in their performance, require skill, judgment, trust, and confidence, and involve the responsibility of the

1 People v. McWilliams, 185 N. Y. 92, rev'g 100 N. Y. App. Div. 176; Matter of Dill v. Wheeler, 185 N. Y. 106, aff'g 100 N. Y. App. Div. 155; People v. McAdoo, 113 N. Y. App. Div. 770. See also People v. Adam, 116 N. Y. App. Div. 613.

2 Chittenden v. Wurster, 152 N. Y. 345, 359, rev'g 14 N. Y. App. Div. 483.

People v. McWilliams, 185 N. Y. 92, rev'g 100 N. Y. App. Div. 176; Matter of Dill v. Wheeler, 185 N. Y. 106, aff'g 100 N. Y. App. Div. 155.

In Massachusetts, the statute gives to the civil service commissioners power in their judgment and discretion to require offices involving confidential

relations between the incumbent and his superior to be filled according to the rules, or to so classify them that they will be free. Attorney-General v. Trehy, 178 Mass. 186, 193. In Illinois, an exception from the operation of the statute of "heads of departments" does not remove from the operation of the act assistants and deputies of the heads of departments, although they may occupy positions of trust and confidence, and may be charged with the performance of the duties of their chiefs. People v. Kipley, 171 Ill. 44, 74, 89. Chittenden v. Wurster, 152 N. Y. 345, 360.

officer of the municipality whom he represents, the position should be treated as confidential.' But this rule will not be extended to permit the exemption from examination of more than the number of appointees actually required to perform duties of a confidential character. The work of an office would have to be great, and it would have to distinctly appear that one could not discharge the duties of the position in order to justify the exemption of more than one.2

preserving papers and receiving and paying over to the city treasurer all costs and fines, the office of clerk of the police court is not a confidential office, and, hence, is not exempt from classification in the competitive schedule of municipal civil service regulations, or from the constitutional provisions giving a preference to veterans. People v. Tobey, 153 N. Y. 381, modifying 8 N. Y. App. Div. 468, 17 N. Y. App. Div. 621.

2 Chittenden v. Wurster, 152 N. Y. 345, 360. The question whether a position is confidential in its nature may arise not only under the provisions of civil service laws, for the classification of offices and positions, but also under provisions of these statutes, and of Veterans' Act and other enactments excepting confidential positions from restrictions upon the power to remove summarily and without motive. There does not seem to be any substantial difference in the rules applied in determining the character of the position under the different statutes.

People v. Palmer, 152 N. Y. 217, 220, rev❜g 9 N. Y. App. Div. 58; Chittenden v. Wurster, 152 N. Y. 345, 360. In Chittenden v. Wurster, 152 N. Y. 345, 359, speaking of the practicability of competitive examination for confidential positions, Haight, J., said: "We have carefully read the evidence in this case, and not a word have we found tending to show that a competitive examination is practicable for a position where the appointee is to receive, open, read, and answer the letters of his chief, where he is to counsel and advise him with reference to the conduct and management of his office, sign his name to checks and warrants, collect and pay out his money, have the combination of his safe, and the custody and control of its contents. A candidate may be ever so competent and still lack many of the necessary elements of a trustworthy officer; he may be ever so learned and still lacking in judgment and discretion; he may be discreet and still without character; he may be honest and yet meddlesome, and a person in whom you I could not confide. To our minds the Confidential positions. The followframers of the Constitution or of the ing positions have been held to be constatutes never contemplated or in- fidential in their nature and either tended that a competitive examination exempt from competitive examination, was practicable for such a position." or protected against summary removal It has been held that the question under the Veterans' Acts, and other whether a position is confidential is to statutes, limiting and restricting the be determined by the relation of the power of removal: Assistant warrant holder to his immediate superior who clerk in the office of the comptroller of has power to appoint and remove him, a city, who was entrusted with the and not to the head of the department care of bills and vouchers, examinato whom such superior, e. g., a deputy, tion of bills, verification of audit, and may be subordinate. People v. Dalton, delivery of warrants to the persons 158 N. Y. 204, aff'g 34 N. Y. App. Div. entitled thereto, and who in the 6. Where the duties to be performed absence of the warrant clerks filled by the clerk of the police court of a city out the warrants, &c. People v. are specified in detail by statutory en- Palmer, 152 N. Y. 217, rev'g 9 N. Y. actments, and the police justice has no App. Div. 58. Special agent in the power to determine these duties, and excise department of the State. People his statutory duties consist of admin- v. Lyman, 157 N. Y. 368, aff'g 30 N. Y. istering oaths, taking depositions, ad- App. Div. 135. Subpæna server in journing proceedings in the absence of the office of district attorney. People the justice, giving a bond to the city v. Gardiner, 157 N. Y. 520, rev'g 33 for faithful performance, keeping a N. Y. App. Div. 204. Assistant overrecord of the proceedings, filing and seer of poor of a city. People v. Tracy,

Other positions in which competitive examination has been held to be impracticable are the subordinates of an officer for whose errors or violation of duty the officer is financially responsible, or who have personal custody of public moneys or public securities for the safekeeping of which the head of the office is under bond. The legislature may, by statute, exempt these positions from competitive examination, notwithstanding a constitutional direction that such examinations shall be required so far as practicable.' If the civil service commission, which is given authority to classify positions subject to competitive examination, has not deemed it practicable to determine the qualification of an officer by competitive examination until after an appointment or promotion has been made, an appointment or promotion without an examination is valid, although

35 N. Y. App. Div. 265. Secretary of s. c. 17 N. Y. App. Div. 621. Assistfire department in New York City, ant to clerk of police court in New York having control of correspondence of City. People v. Knox, 45 N. Y. App. department, charge of records, disbursement of petty office expenses, management of office and general supervision of the business of the department. People v. Scannell, 51 N. Y. App. Div. 360, 363. County detective appointed by the district attorney, whose duties are, under direction of district attorney, to preserve order, to serve papers and process, to examine bench warrants and orders of arrest. People v. Clarke, 54 N. Y. App. Div. 588. Deputy sheriff, who in fact acts as turnkey or deputy sheriff whenever called upon to do so, though he may be assigned to take charge of the heating apparatus in a county jail. Matter of Blust v. Collier, 62 N. Y. App. Div. 478. Assistant sergeant-at-arms of board of aldermen of New York City. Matter of Shaughnessy v. Fornes, 73 N. Y. App. Div. 462, aff'd on other grounds 172 N. Y. 323. Deputy collector of assessments and arrears. People v. McFadden, 75 N. Y. App. Div. 264. Comparison and index clerk in office of register of deeds. People v. Hamilton, 98 N. Y. App. Div. 59. As to employees in office of register of deeds, generally, see People v. Collier, 78 N. Y. App. Div. 620, rev'd on other grounds 175 N. Y. 196.

Div. 518. Clerks of the board of audit performing services wholly of a public character and bearing no personal relations to any member of the board. People v. Sutton, 88 Hun (N. Y.), 173. Assistant examiner in office of the commissioners of accounts in New York City. People v. Hertle, 46 N. Y. App. Div. 505. Dock master entrusted by the board of dock commissioners with the collection of certain moneys. People v. O'Brien, 9 N. Y. App. Div. 428. Collector of market fees. People v. Coler, 31 N. Y. App. Div. 523, aff'd 157 N. Y. 676. Water registrar whose duty it is to supervise the annual rolls for water taxes, &c., the bills for the same, and the receipt and collection of moneys paid. People v. Dalton, 41 N. Y. App. Div. 458, aff'd 160 N. Y.. 686.

Non-confidential positions. The following positions have been held not to be confidential in their nature under these statutes: Clerk of police court of Syracuse. People v. Tobey, 153 N. Y. 381, modifying 8 N. Y. App. Div. 468,

Chittenden v. Wurster, 152 N. Y. 345, 361. See also People v. McFadden, 75 N. Y. App. Div. 264; People v. Coler, 31 N. Y. App. Div. 523, aff'd 157 N. Y. 676; People v. Dalton, 41 N. Y. App. Div. 458, aff'd 160 N. Y. 686. In New York, it has also been the generally accepted doctrine that as to the positions of laborers and day workmen employed in ordinary manual labor, it is not practicable to determine merit and fitness by competitive examinations, and under the Constitution and statutes such persons are properly classified in the non-competitive schedules. People v. Dalton, 49 N. Y. App. Div. 71, aff'd 163 N. Y. 556.

thereafter the commission has determined that a competitive examination is practicable, and has provided for the examination of candidates.1

§ 404. Exempt Positions; Heads of Departments, Deputies, etc. The heads of departments, and also in some cases their deputies, are, either expressly or by necessary implication, excepted from the operation of the provisions of civil service and other laws regulating the appointment to and removal from offices and positions in the municipal service.2 Founded upon the analogy of the State, the charters of cities frequently divide the principal departments into the executive (at the head of which is the mayor) and the legislative departments (which is composed of the common council or board of aldermen), but the meaning of the words "head of any principal department in a city" when used in a statute regulating appointment to or removal from office is not to be restricted to this primary division of powers. Without attempting to state exhaustively the meaning of the phrase, it may be said to denote

1 Matter of Sugden v. Partridge, 174 N. Y. 87, 96, rev'g 78 N. Y. App. Div. 644; Chittenden v. Wurster, 152 N. Y. 345, 362. 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.

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lative body of a city a department? It has been held that statutes providing that any clerk or employee of any department of a city whose position or employment may be abolished by the abolition of any department or its consolidation with another, shall be rein2 Illinois. An exception from the stated in the same or similar position operation of the statute of "heads of or employment in another department, departments" does not remove from do not apply to the legislative body of the operation of the act assistants and a city having power to elect its own deputies of the heads of departments, officers and attendants, and the apalthough they may occupy positions of pointees of a board of aldermen to trust and confidence, and may be positions in the office of the clerk of the charged with the performance of the board of aldermen are not governed by duties of their chiefs. People v. Kipley, its provisions. Matter of Shaughnessy 171 Ill. 44, 74, 89. A statute in New v. Fornes, 172 N. Y. 323, aff'g 73 N. Y. York which provides that all veterans App. Div. 462. The provision of the "now in the service" of a municipal New York Civil Service Law dividing corporation shall be retained therein the civil service of the State and cities and shall not be removed except for into the classified and unclassified cause, is limited in its operation to service, and declaring that the unsubordinate positions, and does not apply to the heads of departments who are directly appointed by the mayor. People v. Morton, 148 N. Y. 156, 162; People v. Van Wyck, 157 N. Y. 495, aff'g 33 N. Y. App. Div. 318; People v. England, 16 N. Y. App. Div. 97; People v. Trustees of Saratoga Springs, 35 N. Y. App. Div. 141, aff'd 159 N. Y. 568; Murray v. New York, 60 N. Y. App. Div. 541.

Attorney-General v. Trehy, 178 Mass. 186, 194. Quære, Is the legis

classified service shall comprise "all legislative officers and employees," includes in its operation the officers and employees of the legislative bodies of cities, i. e., the council or board of aldermen, and the position of clerk in the office of clerk of the board of aldermen of New York City is a legislative position, belonging to the unclassified service, and may be filled without a competitive examination. People v. Scully, 56 N. Y. App. Div. 302.

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