such city or civil division thereof, unless an estimate, pay roll or account for such salary or compensation, containing the names of the persons to be paid, shall bear the certificate of the State Civil Service Commission, or in case of the service of a city, the certificate of the Municipal Civil Service Commission of such city, that the persons named in such estimate, pay roll or account have been appointed or employed or promoted in pursuance of law and of the rules made in pursuance of law."

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Thus the acts of 1898 and 1899 created an office not merely new in name, but new in function. No officer with the powers and duties of a Municipal Civil Service Commissioner ever existed in this State before, except in New York city under a special provision of the charter of 1897, and then, too, it was a new office," having been created after the Constitution of 1894 became effective. An entirely new organ of government was created to carry into effect in the cities of the State the mandate of the Constitution by the exercise of authority, over pay rolls and in the character of a board with independent administrative powers. Until 1899 no officer had power to stop payments in cities in violation of the Civil Service Law, not even the mayor, who, up to that time, was held responsible for the administration of the State Law with respect to the city service, while the Civil Service Commissioners, popularly so called, were not commissioners, or even public officers, but merely "suitable persons" to aid him as he might request in the discharge of his duties. Here was a new work, never done by anybody before 1895, and in decreeing that the work should be done, in order to enforce the rule of merit newly established by the Constitution, it was competent for the Legislature to entrust that work to persons appointed as it saw fit. Its discretion was not limited by Article X, section 2, of the Constitution, for it was doing pioneer work of statecraft, much more so than in establishing a board of village water commissioners, held to be constitutional in Hequembourg vs. the City of Dunkirk (49 Hun 550), or a board of examiners to a fire department upheld in the case of the Fire Department vs. Atlas S. S. Co. (106 N. Y. 566-578), or a special commission for widening a village street. (People ex rel. Kilmer vs. McDonald, 69 N. Y. 362; Hanlon vs. Supervisors, 57 Barb., 385-397.)

Not only are the Municipal Civil Service Commissioners new officers in name and function, but, as created subsequent to January 1, 1895, they are actually the first Civil Service officers ever existing in the cities of the State. Under the earlier Civil Service statutes, in force until after 1895, permitting mayors from time to time to "employ suitable persons" to conduct inquiries and make examinations, the Attorney-General gave it as his opinion that neither this designation nor the statutory provision made such persons city officers, and therefore the mayor of a city could properly appoint as Civil Service examiners for that city members of the Police Board and Excise Commissioners. (Opinion of Theodore E. Hancock, Attorney-General, May 10, 1895.-N. Y. Civil Service Commission's report for 1894, page 114.)

II. THE CIVIL SERVICE LAW ESTABLISHES A STATE ADMINISTRATIVE SYSTEM WHICH MAY BE ENFORCED EVERYWHERE AS THE LEGISLATURE MAY DIRECT.

It would have been perfectly competent for the Legislature to confer the power of making rules, conducting examinations and certifying pay rolls for every branch of the public service of the State, including all its local divisions, upon the State Civil Service Commission directly. It has done this with reference to the service in the counties, though the Constitution confers upon the counties the same right of local election which it does upon cities towns and villages. All are entitled to the same measure of local self-government according to Article X, section 2 which provides: "All county officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties or appointed by the Board of Supervisors or other county authorities as the Legislature shall direct. All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the Legislature shall designate for that purpose."

Judge O'Brien, in his dissenting opinion, in Chittenden vs. Wurster (162 N. Y. 345-396), has said that it is not necessary in order to put the mandate of the Constitution into immediate operation to wait until a village or county Civil Service Board is organized by the Legislature:

"All the Constitution requires is that there shall be an honest, open, competitive examination, and the State can furnish that, even to candidates in the particular county, better than any local authority."

The Legislature has full power to secure competition, with or without local agency, as it sees fit, in counties and villages, and it must have the same power in cities.

The Legislature in its wisdom saw fit to commit the execution of the law with respect to the county service directly to the State Civil Service Commission, but to create special boards to enforce it with respect to city services. If it had the right to deal thus with the counties, it had the right to do the same with the cities. Having the power to create city boards or confer their functions on the State Commission, it had power when creating them to provide for their appointment as it pleased, and to abolish them or suspend the administration of this State system under their control at its discretion, for, as Judge Selden has said in People vs. Batchelor (22 N. Y. 128-137):

"No one, I think, can doubt the power of the Legislature to withdraw entirely or postpone the exercise of an authority conferred by itself alone upon the mayor and aldermen."

It is not necessary that the appointment should continue with the mayor because the power has once been conferred upon him, for, according to People ex rel. Taylor vs. Dunlap (66 N. Y. 162-168):

"The Legislature, by acting, lost none of its authority over the subject. It could thereafter abolish the office, change its character from a county to a city office and provide for a different mode of appointment. The whole subject was within the. control of the Legislature. What the Legislature could have done originally, it could do by a subsequent enactment.”

The Civil Service system was established not merely, or even mainly, to regulate the actual performance of the work of government, state or local, but to check a tendency demoralizing to the community and dangerous to political liberty. Before its introduction the duties of administration were reasonably well performed. Public officers selected subordinates who in general did their work faithfully. The fact cannot be ignored that now some officials of intelligence and honesty, who have no desire to distrib

ute patronage, think that they could conduct their departments more efficiently if entirely free to select their own subordinates. The Civil Service system, though doubtless intended to improve the service, was primarily adopted by the people to prevent public office from being used as a weapon of political warfare. How efficiently in any city a particular office is administered does not much concern the people of the State at large. But the use of that office as spoils to build up or tear down a political party by rewards and punishments for political activity does greatly concern them. It interferes with their freedom of elections and perverts their government agents from their proper functions as the servants to be the masters of the people's will. The machinery established to prevent this abuse is a State machinery. Through it the State does not undertake to say how any true municipal function shall be performed. The city officials are as free as ever to adopt and execute their own measures of local government. They are merely forbidden to make that government a political weapon. The rules made for the Civil Service in the cities are subject to the State Civil Service Commission, and that subjection is constitutional. (Rogers vs. Common Council of Buffalo, 123 N. Y. 173.) If the administration of the law in cities is itself not a local function, but thus absolutely subject to State control, the officers of administration are not local officers in the meaning of Article X, section 2, of the Constitution.

The decision in People ex rel. Balcom vs. Mosher (163 N. Y. 32-42), that the Civil Service article of the Constitution must be construed so as to give full force to Article X, section 2, is not in conflict with this view of the Civil Service Law. It was held that the Civil Service provision could not deprive local authorities of their constitutional power by prescribing to them their appointments and compelling them to take the highest person on an elig ible list. That finding was partly based on the fact that the Civil Service Commissions were, or might be, an external authority, and the constitutionality of the part of the statute now in question was assumed as a reason for holding the other part unconstitutional and securing to local officers some choice among the candidates proposed to them by a Civil Service Commission. Thus Judge Martin said:

"Moreover, by section 10, of the act of 1899, if the Mayor for any reason fails to apppoint Municipal Civil Service Commission

ers, the right to appoint them is conferred upon the State Commission until the expiration of the term of the Mayor then in office, and until their successors are appointed and qualify. The State Commissioners are also authorized to remove any Municipal Civil Service Commissioner for cause. Therefore, there may be circumstances under which the selection of all the appointive officers of a city will be controlled by the State Civil Service Commissioners, and thus the people and the local authorities of the municipality be deprived of any voice in the selection of its offi cers."

The machinery for the enforcement of the Civil Service Law in cities is as properly a State system, notwithstanding its operation in cities and over city officials, as are the state excise department, the franchise tax machinery or the educational department.

The members of the New York City Board of Education, though appointed by the Mayor with functions exclusively local, are not city officers. In Ham vs. Mayor (70 N. Y. 459-463) it is held:

"Whether it was a corporate body is not material, for though formally constituted a department of the municipal government the duties which it was required to discharge were not local or corporate, but related and belonged to an important branch of the administrative department of the State government."

Also in Ridenour vs. Board of Education of Brooklyn (15 Misc. 418) it is held that the board is:

"A local-school corporation like every board of school district trustees, and is, like every such board, an integral part of the general school system of the State. It is a State and not a city agency, doing State and not city work and functions."

III. THE POWER TO REMOVE MUNICIPAL SERVICE COMMISSIONERS AND APPOINT THEIR SUCCESSORS IS A DISCIPLINARY POWER CONSTITUTIONALLY GRANTED BY THE LEGISLATURE.

Whether the Municipal Civil Service Commissioners be consid ered new or old officers with reference either to the provisions of the Constitution as continuing from 1846 or enacted anew in 1894; whether they be considered local officers or State officers, the Legislature has power to provide, in its discretion, for their removal for misconduct and the filling of vacancies. The power conferred upon the State Civil Service Commission is not an arbi