when service controls selection irrespective of qualifying value. It is the difference between an appraisal of merit, an estimate of fitness, and a preference or bonus. The constitution circumscribes the field of privilege

and favor.

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*

"By Chapter 282, Laws of 1920, mere entrance into army or navy, and that whether voluntary or involuntary, is made sufficient for preferment. Neither the kind or the quality for the duration of the service is important. There is not even the requirement of an honorable discharge. Service for a month or a day as cook or as hostler counts as much as service throughout the war, and the winning of a cross of honor.

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"A small class and one arbitrarily chosen, has been clothed with special privileges. It is one thing to say that heroism shall count for more than knowledge in offices and employments where heroism, more than knowledge, is the test and evidence of fitness. It is another thing to say that in all the humdrum work of life, the daily routine of shop and of office, of counter and of desk, soldier and sailor, irrespective of the extent and quality of their service must be presumed to have qualifications sufficient to advance them from the bottom to the top.

*

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"The condemnation of the act is written in the constitution in words too plain to be misread. Competitive examination must be the test if practicable. Competitive examination has not been found to be impracticable. The legislature has substituted a preference for a test.

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"The members of the court are not oblivious of the debt of gratitude that is due to the soldiers and sailors of the nation for sacrifice and service. If discharge of that debt requires a preference in the civil service, the people can so declare. "The court is constrained to adjudge that chapter 282 of the statutes of 1920, ignores the limitations of the constitution, and that the preference which it concedes, is void."

*

Until chapter 282 of the Laws of 1920, referred to in the above opinion, was declared unconstitutional, the Commission had endeavored to put in practical operation its somewhat complicated provisions and to apply to the service other preference provisions of recent laws.

For instance, in order to carry out the plan of credits for personal merit to veterans in civil service examinations as prescribed in chapter 702 of the Laws of 1921, the so-called Duell bill, the Commission appointed a special committee consisting of nine distinguished military men and legislators to formulate a system of credits for personal merit to be used in civil service examinations. The members were: Major-General John F. O'Ryan, Transit Commissioner, New York City; Brigadier-General J. Leslie Kincaid, State Adjutant-General, Syracuse; Colonel William J. Donovan, Buffalo; Major Ranulf Compton, Deputy Secretary of State, Saratoga Springs; Hon. Charles G. Blakeslee, Public Service Commissioner, Binghamton; Hon. Holland S. Duell, New York City; Hon. Theodore Douglas Robinson, Mohawk; Hon. Louis M. Martin, Clinton, and Hon. Ransom H. Gillett, New Lebanon Center.

This committee was appointed July 2, and immediately took up, in co-operation with the Commission, the difficult problems of rating which had developed. The conclusion of the Court of

Appeals in the Barthelmess case, however, denied any personal merit rating to veterans as such and, thus, made further action by the committee needless.

Following this court decision, the Attorney-General took up other provisions of the Duell bill and held that while soldiers in recent wars did not have a preference for appointment, they should be preferred in certification over others standing equally high in examinations. Certification in accordance with such opinion was thereupon adopted as the practice of the Commission. And in the various situations that have arisen, the opinion of the Attorney-General has been asked and the course advised by him followed.

Of its own accord, the Commission long ago decided that whereever military training or experience of a veteran, whether at home or abroad, was of definite value in fitting a competitor for the duties to be performed in a position, such military training or experience should always be considered in the examination. Where such acquired helpful experience or training exists, it of course betters the rating of a competitor.

III

MERIT SYSTEM SUSTAINED IN STATE
REFERENDUM

The civil service merit and fitness provisions of the State Constitution first appear in the Constitution of 1894. That Constitution was adopted November 6 of that year. The vote

Article V, section 9 of the Constitution then adopted declares that "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, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” And the same section requires that honorably discharged soldiers and sailors in the Civil War obtaining a place on an eligible list shall have preference in appointment and promotion. This preference, it is to be ob

served, was not granted until thirty years after the close of the war in which its beneficiaries had served.

Soon after the end of the Spanish War, a widening of the preference so as to include Spanish War service was proposed. This proposal gained legislative support and was apparently about to be submitted to a popular vote when the thought of the whole State came to be centered upon the World War.

At the close of the World War a still more enlarged preference found many advocates. The Senate and Assembly in 1919, in 1920, and in 1921, considered in many committee meetings and in legislative sessions, the questions involved and approved of submission to the people of the State.

Finally, on November 8, 1921, the question whether the soldier preference should be extended to cover the service in all past and future wars, came before the voters of the State.

New York State supplied for the army, navy, and marine corps in the World War a total of 512,477 officers and men. In addition, it is estimated that Naval Reserve officers, who are not reported by states, about 2,200 may properly be credited to New York.

Ever since 1883, when the first civil service law was passed, the usefulness of the merit and fitness system for public employment had been under special observation. Even more since 1894, in which year the principle had been embodied in the Constitution, had its value been comprehended. Particularly had the operation of the competitive plan and the effect thereon of any soldier preference been considered in legislative and newspaper presentation in the several years immediately previous to 1921. By such processes the voters of the State were in no inconsiderable degree intelligently prepared for the very active discussion which began early in 1921 when it was clear that the question in all its bearings was to come before the whole electorate for decision. And as the campaign progressed, more and more interest was awakened in the basic relation of the civil service to all functions of the State. Thus when the vote came to be taken in November, the question in reality was felt to be whether the civil service competitive system should be weakened or whether it should be maintained in its integrity.

It is to be borne in mind that the discussion was free from the complications of personal candidacies, for but a single State office, and that a judicial one, was to be filled at the 1921 election. And, also, it is to be noted that one of the candidates for that State office was a judge who on August 31, 1921, delivered the opinion of the Court of Appeals by which the World War Soldier Bonus Bond Issue Law was declared unconstitutional.

This law, it may be mentioned, had been passed after the State referendum of November 2, 1920, had approved by a large majority the bonus principle.

The foregoing facts are recited in order to make it clear that the advantages on the one hand of upholding the merit system and, on the other hand, the reasons why a preference might properly be bestowed on soldiers, were fully and fairly and intelligently considered in all their bearings in the November, 1921, referendum. Was the soldier to be rewarded by undermining the merit system? Was public employment for a generation or more to be confined substantially to citizens of one class and one sex? Was the civil service of women and men long in the State employ to be put aside in favor of a comparatively short military service of men only? And, inasmuch as other wars were likely to occur, was the civil employment to be exposed to the danger of coming permanently under the domination of a military qualification? Such were the questions that referendum was to decide.

There is no doubt in the mind of the Commission that the widely proclaimed and constantly reiterated declaration that patriotic considerations demanded support of the preference amendment, gained many votes in its favor. Nor is there any question that appeal to sympathy for the sick, the wounded and the unemployed veteran induced support of the preference plan. These and similar sentiments naturally had much weight in the campaign. And while the result of the discussion and voting was the defeat of the amendment, those who would have benefited by its adoption must properly be led to the conclusion that the decision against it came not through lack of sympathy with veterans but from conviction on the part of the intelligent voters of the State that the merit system structure was not to be sacrificed even to so appealing a cause as that of reward for a World War service.

On October 31, in reply to many inquiries as to the effect of the amendment if adopted upon the appointment of women and upon the promotion of employees now in the State service, the Commission issued this statement:

The effect of the Veteran Preference amendment, if adopted, would be largely to exclude women from appointment or promotion to positions in the public service. With few exceptions men and women compete in the same examination under the Civil Service rules, and the Commission is obliged to certify names without reference to sex. The result of the amendment would be that men veterans would be appointed and women would be excluded. Civil Service Commissions would have no right in making certification to distinguish between men who have enlisted during the two years since actual warfare ceased, and the men who were wounded or who saw actual service in the war.

Appointing authorities would have no right to give consideration to the widows or orphans of veterans nor could such authorities consider red cross or other war work.

The amendment would have the effect of admitting men to the public service without regard to age and eventually this would be a serious handicap to the service. It would make it impossible to give sufficient consideration to superior qualifications in medical, technical, or teaching professions.

In the matter of promotions the same result would obtain and the veterans would necessarily be promoted without regard to the rights of other public servants who, by reason of experience and length of service, are now under the rules entitled to consideration.

On November 8, the issue was submitted to the people. The preference proposition was designated as Amendment No. 1. The result was that the foundations of the merit system as at present embodied in the Constitution were upheld and that inroads upon the system were condemned by a majority of great magnitude in a total vote of nearly two millions.

Concerning the figures of the vote, it is felt worthy of notice

that:

1. The majority in 1921 for retaining the merit system unchanged is not far from five times as great as that by which article V, section 9, was originally adopted in 1894.

2. The total vote on Amendment No. 1 was the greatest ever cast in New York upon a constitutional amendment.

3. The total vote on Amendment No. 1 was 362,033 more than the average total cast on six other amendments submitted at the same time.

4. There was called out on Amendment No. 1 in 1921, a larger percentage of the whole vote than was cast in the referendum when the soldiers' bonus question was submitted in 1920.

ANALYSIS OF VOTE.

It is assumed that a table of the vote by counties will appear in the Legislative Manual for 1922 and, therefore, county majorities are not given in this report.