the heads of the departments into which, either by express provision or by the customary and general and long-continued method of transacting the business of the municipality, the officers, employees, and agents of the city have been divided. The idea conveyed by the term is that the head of the department is not subordinate to or controlled by any superior officer, except possibly such powers of general supervision and control as may be vested in and exercised by the mayor and council as the heads and general representatives of the city." The exception of "heads of any principal department" contained in the Illinois Civil Service Act refers to the chief office in each principal department as such office existed under city ordinances in force when the act was passed. Neither under this exception nor under the exception of officers "whose appointment is subject to confirmation by the city council" can the number of exemptions be increased by ordinances of the city council. Deputies in control during the absence of the chief, and having charge of hiring men and expending public money, although next in position to the chief and having confidential and business relations with him, are not exempt. People v. Kipley, 171 Ill. 44. It has been said that the term "department" and "head of department" in the provisions of the New York City Charter regulating the discharge of regular clerks, &c., only includes the regular administrative departments of the city as enumerated in the charter. Hence the coroners of the respective boroughs not being the heads of administrative departments, although now borough officers, are not limited thereby in exercising the power of removing clerks in their offices. People v. Scholer, 94 N. Y. App. Div. 282, aff'd 179 N. Y. 602. See ante, chap. i. $ 26. The heads of departments who are within such statutory provisions are the heads of city departments, and not the heads of offices within the city charged with the performance of a duty which properly belongs to the State. Commissioner of jurors in New York City held to be an office which did not relate to the municipal government of the city, and not to be a department of the city within the meaning of a statute regulating removals in the city departments. People v. Plimley, 1 N. Y. App. Div. 458. His 2 People v. Van Wyck, 157 N. Y. 495, 506. In People v. Van Wyck, 157 N. Y. 495, 504, where the court held that a member of the board of assessors in New York City did not occupy a subordinate position, Parker, C. J., said: "The incumbent of the office of assessor is inferior in rank to that of the mayor by whom he is appointed, but he is not subject to the direction of the mayor, or to any one else, in the discharge of the very important and quasi judicial duties pertaining to his office. duties are enjoined by statute, and are within a smaller compass than those placed upon the mayor by the same act, but, within the limits defined by the statute for each officer, the one is not more independent in the discharge of his duty than the other." After referring to the fact that another board had power to revise the assessments as made by the board of assessors, the learned chief judge proceeded; "The test by which to determine whether they are subordinates is not whether a review of such of their determinations as are quasi judicial may be had, but whether, in the performance of their various duties, they are subject to the direction and control of a superior officer, or are independent officers, subject only to such directions as the statute gives." Members of the board of health of a village are heads of department, and not subordinates, and are not protected from summary removal by the New York Veterans' Act. People v. Trustees of Saratoga Springs, 35 N. Y. App. Div. 141, aff'd 159 N. Y. 568. Overseers of poor held to be head of department, and city almoner to be a subordinate under them and subject to classification for appointment. Attorney-General Trehy, 178 Mass. 186. Assistant overseer of the poor of city held to be a deputy, and not protected from sum V. § 405. Subordinate Positions; Laborers. - In contradistinction to the heads of departments ordinary laborers or day workmen are not required to pass competitive examinations. Similarly, statutes which prohibit the discharge of persons holding positions by appointment in the municipal service, except for cause and after notice and a hearing or otherwise restrict the power of removal, are by their terms usually construed to have no applicability or operation upon laborers or day workmen.2 mary removal by the New York Veter- labor class in cities shall be filled by ans' Act. People v. Tracy, 35 N. Y. appointment from lists of applicants App. Div. 265. The position of bridge registered by the municipal commiscommissioner for the construction of a sions. Preference in employment from bridge over the East River is not a sub- such list shall be given according to ordinate position contemplated by the date of application. There shall be New York Veterans' Act, and therefore separate lists of applicants for different is not within the protection of that kinds of labor or employment, and the act. People v. Nixon, 158 N. Y. 221, commissions may establish separate aff'g 32 N. Y. App. Div. 513. Deputy labor lists for various institutions and tax commissioner held to be excepted departments. Where the labor service from operation of Veterans' Act by pro- in any department or institution exvision therein declaring that it should tends to separate localities the comnot be construed to apply to the posi- missions may provide separate registion of private secretary, cashier, or tration lists for each district or locality. deputy of any official or department. The commission shall require an appliPeople v. Wells, 176, N. Y. 462, rev'g cant for registration for the labor ser87 N. Y. App. Div. 270. vice to furnish 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." The civil service acts are not intended to protect and continue in employment persons who are engaged temporarily in the performance of the work as the exigencies of the case require for a per diem compensation. Hoggett v. Mt. Vernon, 36 N. Y. App. Div. 374. Stream cleaner in water department of New York City held to be a laborer and day workman, and as such not subject to competitive examination. People v. Dalton, 49 N. Y. App. Div. 71, aff'd 163 N. Y. 556. Under the mandate of the New York Constitution that appointments and promotions in the civil service should be made according to merit and fitness to be ascertained so far as practicable by competitive examinations, it has been the generally accepted doctrine that as to the positions of laborers and day workmen, performing ordinary manual labor, it was not practicable to employ competitive examination in order to determine fitness, and such persons have usually been classified in the non-competitive schedules. People v. Dalton, 49 N. Y. App. Div. 71, aff'd 163 N. Y. 556. By the New York Civil Service Law (Laws, 1899, chap. 370, as amended by Laws, 1900, chaps. 6 and 675, Laws, 1902, chaps. 270 and 355, and Laws, 1904, chap. 697), the municipal civil service commission of each city is given power to prescribe and enforce rules "for the registration and selection of laborers for employment therein, not inconsistent with the Constitution and the provisions of this act." The statute also provides that "The labor class in cities shall include unskilled laborers and such skilled laborers as are not included it the competitive class or the noncompetitive class. Vacancies in the 2 Uniformed force of street-cleaning department of New York City held not to occupy "positions by appointment receiving a salary" within the meaning of the New York Veterans' Act. People v. Waring, 1 N. Y. App. Div. 594, aff'd 149 N. Y. 621; People v. McCartney, 28 N. Y. App Div. 138; People v. McCartney, 36 N. Y. App. Div. 39. Nor is a person engaged by the department of public highways to furnish a horse and wagon and to drive the same for a certain sum per day, a Between the heads of department on the one hand and laborers employed for daily wages on the other, is to be found the class of subordinate positions to which civil service laws and statutes limiting or restricting the right to remove at pleasure have their natural application. It is impossible to examine these positions in detail, although some of the decisions on the subject will be found in the footnotes.1 § 406. Probationary Appointments. A constitutional provision that appointments and promotions in the civil service 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, is not inconsistent with a statute which provides for appointments for a probationary period only before any absolute ap holder of such a position. People v. Redfield, 86 N. Y. App. Div. 367. An inspector of regulating and grading streets does not hold a position by appointment. Meyers v. Mayor, &c. of New York, 69 Hun, 291. See also Matter of Wagner v. Collis, 7 N. Y. App. Div. 203. But since these decisions were rendered the New York Veterans Act has been so amended as to expressly include within its operation laborers and other employees receiving a per diem compensation. People v. Cram, 34 N. Y. App. Div. 313; People v. Cruger, 12 N. Y. App. Div. 536. Murray v. New York, 60 N. Y. App. "Regular clerks." Since 1873, there has been a statutory provision prohibiting the discharge of any "regular clerk" in the New York City civil service, except for cause and after an opportunity to make an explanation. See Laws of New York, 1873, chap. 335, § 28; Laws of 1882, chap. 410, § 48; Laws of 1897, chap. 378, § 1543; Laws of 1901, chap. 466, § 1543. The words "regular clerk" as used in this statute are used in their popular sense as denoting one whose duties are clerical, Subordinate positions. Fire mar- a person employed in an office, pubshal in Brooklyn held to occupy a sub- lic or private, for keeping records or ordinate position and to be protected accounts, whose business is to write or from removal by Veterans Act. People register in proper form the transactions v. Gray, 32 N. Y. App. Div. 458. of the tribunal or body to which he Superintendent of outdoor poor of a belongs. People v. Fire Commissioners, borough in New York City held to oc- 73 N. Y. 437. Supervisor in the bureau cupy a subordinate position and not of combustibles and assistant to the to be a deputy of the commissioner of fire marshal in the fire department of charities within the meaning of a pro- New York City, held not to be regular vision excepting deputies from the pro- clerks. People v. Fire Commissioners, tection of the Veterans Act. People v. 73 N. Y. 437. Superintendent of teleFolks, 89 N. Y. App. Div. 171. City graph of fire department held not to almoner held to be subordinate of over- be a regular clerk within this proviseer of poor and subject to classifica- sion. People v. Board of Fire Com'rs, tion under the Massachusetts civil 86 N. Y. 149. Property clerk in deservice law for purposes of appoint- partment of parks held to be a regument and removal. Attorney-General lar clerk within this provision. Van v. Trehy, 178 Mass. 186. Street com- Valkenburgh v. Mayor, &c. of New missioner of a village held to occupy a subordinate position, the board of trustees having exclusive control and supervision of the streets, and the commissioner being subject to the direction and control of the board. York, 49 N. Y. App. Div. 208. Inspector of water supply to shipping in the department of public works, held not to be a "regular clerk." People v. Dalton, 34 N. Y. App. Div. 302, aff'd 159 N. Y. 235. pointment or employment shall take effect. The constitutional provision plainly implies that other methods and tests are to be employed when necessary and when calculated to fully ascertain the merit and fitness of the applicant. If a probationary term or other method is necessary to enable an appointing officer to fully or correctly ascertain the merit and fitness of the applicant, the intent of the provision of the Constitution is that it shall be employed.1 During his probationary term the appointee is subject to the same rules as if he had been appointed to a permanent position. The statute contemplates a probationary term or period of probation for a definite or stated length of duration to be determined in advance of appointment. The probationary appointee is to be secured an experimental trial for the period prescribed by the law or rules. made in pursuance of the law, and he is not to be condemned before the time given him to show his fitness has expired, except after an opportunity to explain and a hearing, as provided in the case of similar permanent employees. But so far as his continuance in office or employment after the probationary term is concerned, he is subject to a discretion vested in the appointing power to continue the employment or appointment or not as he deems best for the city's interests. If the appointing officer determines, in good faith, that it is not to the interest of the city that the term of the probationer should be continued, he may, at the expiration of the probationary term, discharge him without a trial or hearing upon the ground that he has not shown the requisite fitness for public employment.3 1 People v. Lyman, 157 N. Y. 368, aff'g 30 N. Y. App. Div. 135. People v. Kearny, 164 N. Y. 64, aff'g 49 N. Y. App. Div. 125; People v. Guilfoyle, 61 N. Y. App. Div. 187. But before the expiration of the probationary period, the probationer may be notified that his services will not be required after his probationary term. People v. Coler, 56 N. Y. App. Div. 171. In New York, the probation period is regarded as a separate and distinct term; it does not run into and become part of the permanent tenure, and is not included in considering right to promotion. Hence, when appointees are entitled to promotion after having served for one year, this mear service for one year from the time when the permanent tenure began. People v. McAdoo, 110 N. Y. App. Div. 740, aff'd 184 N. Y. 575. The Illinois civil service rules provided that the appointment of probationers shall be complete after six months' satisfactory service, but that the head of the department may complete the appointment after two months by certifying such completion to the commission. Held, that this rule did not delegate to the head of the department the power to fix the probationary term. Fish v. McGann, 205 Ill. 179, aff'g 107 Ill. App. 538. When the probationer is a mere employee of the city, and not a public officer, his probationary term begins, not at the date of the resolution or order appointing him, but at the date when he accepts the employment by actually entering into the service of the city. Matter of O'Grady v. Low, 74 N. Y. App. Div. 246. Matter of Murray, 18 N. Y. App. Div. 337, aff'd 155 N. Y. 628. See also People v. Lyman, 30 N. Y. App. Div. 135, aff'd on other grounds 157 N. Y. 368. In New York, retention in service after the end of the probationary § 407. Promotions. In the practical working of the civil service laws, vacancies in positions which are subject to examination are usually filled by promotion from a lower grade in the same department, the candidates for promotion being frequently, if not generally, required to pass a competitive examination open to all incumbents and employees holding positions in the lower grade.' term is expressly declared to be equiva- civil service commission of a single lent to a permanent appointment. person as eligible for appointment in See People v. De Forest, 83 N. Y. App. effect deprives the local authorities of Div. 410. In Illinois, probationers can their power of appointment in violaonly be dismissed from service with tion of the Constitution (ante, chap. iv, the consent of the civil service com- $101; People v. Mosher, 163 N. Y. 32), missioners. Fish v. McGann, 205 Ill. the local authorities cannot be compelled 179, aff'g 107 Ill. App. 538. Suspension to promote the person certified by the of the officer pending the hearing of commission as standing highest on an charges against him, interrupts the, examination. People v. McAdoo, 110 running of the probationary period, N. Y. App. Div. 432. Although there and the officer may be removed in the is a constitutional provision requiring manner prescribed for probationers, promotions to be made "according to although a decision is not rendered until after the time when the probationary period would otherwise have expired. Blake v. Lindblom, 225 Ill. 555. A charter provision conferring upon the mayor an absolute power of removal of all officers appointed by him during the first six months of their respective terms, and limiting removals thereafter to cause after notice and trial, is available to the successor of the mayor actually making the appointment. A person appointed to office for a second term is subject to the absolute power of removal during the first six months thereof. McLellan v. Marine, 98 Md. 53. merit and fitness to be ascertained, so far as practicable, by examination," the civil service commission is not precluded from adopting a rule requiring service for at least six months in the grade immediately below that to which promotion is sought as a condition for admission to an examination for promotion. Matter of Ricketts, 111 N. Y. App. Div. 669. When appointees are, by statute, given the right to promotion after one year's service, this means service for one year after a permanent appointment and not for one year from the commencement of the probationary term. People v. McAdoo, 110 N. Y. App. Div. 740, aff'd 184 N. Y. 575. Duty to place holders of teacher's certificate of a specified grade on the special list of those eligible for promotion, held to be mandatory under the terms of the statute. Matter of Brooklyn Teachers' Assoc., 85 N. Y. App. Div. 47, aff'd 176 N. Y. 564. Under the provision of the New York Constitution requiring promotions to be made according to merit and fitness to be ascertained so far as practicable by competitive examination, it has been said that vacancies can be filled by promotions from those occupying a lower grade in the department, and that it is not necessary that A statute which declares that the position should always be thrown roundsmen and patrolmen detailed to open to persons not in the service. the detective bureau of the police force Per Cullen, C. J., in Hale v. Worstell, shall be known as detective sergeants, 185 N. Y. 247, 255. Illinois. Under and that they shall not be reduced in the Civil Service Act of this State, rank or salary except in the manner vacancies in the higher grades of service provided by law for sergeants and are required to be filled on examination other police officers, does not conflict for promotion from the immediately with a constitutional provision relower grade. Such vacancies cannot quiring appointments and promotions be filled by an original competitive in the civil service of cities to be made examination open to every one. Ptacek according to merit and fitness, to be v. People, 194 Ill. 125, aff'g 94 Ill. App. ascertained so far as practicable by 571. In New York, in keeping with competitive examinations, since the the principle that certification by the statute does not create a new office and |