decision would emasculate the Commission and rob the law of effectiveness. If, as is contended, the provision of the law requiring the Commission to investigate relates only to acts of possible collusion between its subordinates and other persons in the public service, it is deprived of the power given other state commissions and legislative committees. If the Civil Service Commission can not investigate, it can not determine whether the law is violated or evaded in any particular, and without such determination it can not intelligently report upon the matter or exercise corrective power. In the unexpected event of an adverse decision by the court as to the power of the Commission there would be no recourse but an appeal to the people, through their representatives in the Legislature, to correct an unhappy obscurity in language of the statute in question, and thus give unequivocal force to its plain, and heretofore unquestioned, intent.

The section of the law, to prevent investigation of an alleged violation of which this attack upon the power of the Commission is made, is explicit and comprehensive. The enforcement of its prohibition would have a most wholesome effect in removing the public service from the danger of political use and abuse. It reads:

"Section 24. Political assessments prohibited. No officer, agent, clerk, or employee under the government of the state of New York or any civil division or city thereof shall, directly or indirectly, use his authority or official influence to compel or induce any other officer, clerk, agent or employee under said government, 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 pur

pose of said government, or any said division or city thereof, is hereby authorized to prohibit the entry of any person, and he shall not knowingly permit 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, subscription 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."

Other Matters in Litigation.

The so-called Kings county case, in which the sheriff of that County, having been denied mandamus to compel the transfer of certain positions in his office from the competitive to the exempt class, appealed to the courts for a review by certiorari of the action of the State Civil Service Commission in refusing to change the classification of those positions, was recently argued before the Appellate Division, Second Department, and a decision

is now awaited. The Attorney-General, the Hon. Julius M. Mayer, in his able argument in behalf of the Commission, dwelt with convincing emphasis upon the point made in its annual reports for 1903 and 1904, that as the resolutions of the Commission affecting matters of classification must receive the approval of the Governor before they become effective, they are in effect his executive acts and therefore can not be overruled by the courts. He also pointed out, in discussing the merits of the case under review, that, the State Commission and the Governor having classified a position as competitive, the burden is upon the person attacking such classification to show that competitive or non-competitive examination has been found to be not practicable. Mere theory that examination in the case would be impracticable is not sufficient. He said: "The purpose of the statute was that if a place in the competitive or non-competitive class, not specifically exempted as provided in section 12, was, after experiment, found to be the kind of place which did not produce proper officials or employees through the competitive or noncompetitive examinations, then the Commission and the Governor would be authorized within the terms and the purposes of the statute and the Constitution, to take that place out of the class of places subject to examination and put it into the class exempt from examination." These contentions, the Commission believes, are incontrovertible and will be sustained by the higher courts. Such a determination would greatly strengthen the hands of the Commission.

The question of the classification of the position of battalion chief of the fire department of the city of Buffalo, raised upon the refusal of the State Commission to approve a resolution of the municipal commission placing it in the exempt class, was

decided adversely to the Commission, in January, 1905, by the Appellate Division, Fourth Department, Justices Stover and Williams dissenting. This case has been carried to the Court of Appeals.

A decision by Mr. Justice Gaynor of the Supreme Court, deny. ing right of transfer to a position involving different qualifications and paying a higher salary except where the person to be transferred has obtained, through competitive examination, a place on the appropriate eligible list that would entitle him to original appointment, has recently been affirmed by the Appellate Division, Second Department. Though this Commission is not a party to the action (Hale vs. Worstell), it views the decision as of the greatest importance. If sustained by the Court of Appeals, to which the case has now gone, it will put an end to a practice that has operated to the discredit of civil service administration and that has worked injustice to candidates who have earned high position on the eligible lists, but who have been denied appointment in order to make places for favorites who may have attained lower positions on such lists.

The case of Bedford vs. The Municipal Civil Service Commission of Buffalo, now on appeal, is also one upon which depends a question of importance as to the administration of the Civil Service law. The complainant was appointed as foreman of streets, a position in the labor or exempt class, but he was actually employed as a clerk in the city hall, a position in the competitive class. The municipal civil service commission, having positive knowledge of the fact that Bedford was employed, in violation of section 13 of the Civil Service law, under a title not appropriate to the duties performed, withheld its certificate that he had been appointed or employed in pursuance of law

and the rules made in pursuance of law. Justice Kenefick, of the Supreme Court, in deciding the case adversely to the commission, held that the duty of a civil service commission in certifying a payroll ends when it finds that the persons named therein are qualified for appointment or employment in the positions assigned to them respectively on said payroll and that they have been duly and regularly appointed to such positions. The responsibility as to the legality of the employment, he held, belongs exclusively to the appointing power. This may be so, but if, as in the case in question, the commission knows that a person is employed at duties not properly described by the title under which he was appointed or employed, it would seem that it can not properly attach its certificate to the payroll. The Civil Service Commission should have, if it does not have, the power to withhold its certificate in any case where the employment is in violation of the Civil Service law.

Practicability of Competition.

The year has seen the practicability of testing merit and fitness for public office, under the rule of competition laid down by the State Constitution, many times demonstrated. Positions of large responsibility, requiring tact and other personal qualifications requisite to the most confidential service as well as extended training and high technical knowledge, and carrying compensation in generous amount, have been filled from the eligible lists established by the Commission and in a manner entirely acceptable to the appointing officers.

The competitions conducted by this Commission are never scholastic, are not always in the shape of written examinations, but are always practical and designed to secure for the posi