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able except for incompetency or misconduct and after a hearing upon stated charges, and to extend the same measure of protection to those who served in the incidental insurrections in the Philippines, prior to July 4, 1902. This was approved by the Governor. Another, designed to extend the provision giving an employee an opportunity to make explanation before removal, now applicable in New York city, to the other portions of the State, and to extend the right of a suspended employee to reinstatement through a period of three years to any corresponding or similar position, was disapproved.

The Executive also withheld approval of an act revising the charter of the city of Amsterdam because of a provision setting aside the Civil Service Law so far as the chief engineer of the fire department and the chief of police were concerned.

Several bills designed to strengthen the merit system were introduced at the last session of the Legislature, either at the. suggestion of the Commission or the New York Civil Service Reform Association, but they failed of passage. The Commission renews its recommendation for the extension to municipal commissions of the power of investigation within their several jurisdictions, now possessed by the State Commission, and by the New York City Commission under charter provision; the clarifying of the law respecting certifications more certainly to prevent the abuse of employing a person nominally in one position but actually in another for which he had not qualified; the allowance of a test by a taxpayer's action of the legality of the appointment of persons held to be public officers (such as policemen) in the classified service, as well as those held to be mere public employees, the remedy by quo warranto for violations of the Civil Service Law being in most cases cumbersome and ineffective; and the restriction of statutory exemption of deputies authorized by law to act generally for and in place of their principals to one deputy, leaving the exemption of others to the discretion of the Commission and the Governor, according to the circumstances of each case.

As to Probation Officers.

In approving Assembly bill No. 2240, Senate reprint No. 1482, relating to the inferior courts of criminal jurisdiction in the city of New York, the Governor considered the provision

declaring that the "probation officers shall be deemed the confidential officers of the justices and magistrates," and while strongly condemning such characterization of positions in the public service by legislative acts, expressed his belief that it did not preclude the filling of the positions through competitive examinations. In this he had the support of the State Civil Service Commission, which held that the use of the word "confidential " would not make it necessary to classify the positions as exempt from examination, and which instanced the fact that "probation officers have been appointed in cities and counties throughout the State as the result of open competitive examinations and with entirely satisfactory results."

The New York City Civil Service Commission first called an examination of candidates for the position of probation officer, but later canceled the call, and after prolonged discussion and delay, adopted a resolution classifying the position in the exempt class. Mayor Gaynor disapproved this resolution, but before an examination could be held and an eligible list established, Mr. Justice Maddox, on application of a Brooklyn citizen, granted a peremptory writ of mandamus commanding the board of city magistrates to appoint probation officers as provided by the statute without regard to the civil service classification, on the ground that appointments from a fixed date were mandatory and incidentally he expressed the opinion that as confidential positions they were exempt. This decision has been appealed by the corporation counsel of New York, and the Municipal Civil Service Commission is going on with its preparation of eligible lists. Inasmuch as the Court of Appeals in the case of Hammond v. Ricker et al. recently decided that an action to reclassify positions in a service of a municipality could not be maintained unless the State Commission was made a party to the action, it is not to be supposed that this attempt to determine a question of classification collaterally can succeed. The law devolves upon the municipal and State commissions the duty of classification and makes every place competitive until it has been otherwise classified. If interested parties could secure judgments practically upsetting the classification without making the commissions parties thereto and allowing them their day in court, the greatest opportunity for abuse would be offered.

Other Litigation.

Attempts to break down the Civil Service classification for the benefit of individuals through appeals to the courts have been generally unsuccessful during the past year.

One of these, that of the People ex rel. John T. Kelly v. Charles F. Milliken et al., turned on the question whether the relator, who held the position of personal clerk of a Supreme Court Justice, and as such was in the exempt class, could be transferred to the position of court attendant, which is in the competitive class. The relator had attained a position on the eligible list for court attendant, but was not one of the first three, and therefore, under the rule limiting the right of transfer from the exempt to the competitive class to a person who has "qualified in an open competitive examination and is eligible for certification and appointment from the appropriate eligible list," could not be transferred. The order of the lower court directing a peremptory writ of mandamus in favor of the relator was unanimously reversed by the Appellate Division, Third Department, which held that the rule in question was authorized by the statute.

The Court of Appeals has affirmed the decision of the Appellate Division, Third Department, in the application of Charles A. Phillips for a writ of mandamus against the State Civil Service Commission to compel the certification of his accounts for services as physician of the Kings county jail. The lower court held that Phillips was in the unclassified service, having been appointed by the Board of Aldermen for a fixed term, and therefore, was entitled to his pay for services rendered. This decision was reversed by the Appellate Division.

In the case of Joseph Abel, who brought an action to compel the Commission to place his name on the eligible list of clerks for appointment in the office of the county clerk of Kings county, the application was denied at a special term, which decision was affirmed by the Appellate Division, and the application is now dismissed by the Court of Appeals.

Mr. Justice Crane, of the Second Judicial District, after trial of the issues raised in the Slavin case to set aside the grading of positions adopted by the New York City Commission and approved by the State Commission, has decided in favor of the municipal

commission and dissolved the temporary injunction granted by Justice Aspinall of Kings county.

Following denial of his application for transfer from the competitive class to the exempt class of eight positions in the law department of Buffalo, Corporation Counsel Hammond of that city brought mandamus proceedings against the municipal commission and the mayor. The special term granted the application in respect to one position, that of private secretary, and denied that for the other seven. The Appellate Division affirmed the order, and upon the question whether the State Civil Service Commission, without whose approval no change of classification by a municipal commission is valid, must be made a party in a suit for reclassification, expressed the opinion that the State Commission was a proper party, if it was not a necessary party. On appeal, the Court of Appeals held that the State Commission was a necessary party, thus establishing a point of the utmost importance in litigation attacking a municipal classification. The Court of Appeals did not pass on the merits of the case.

The case of Earl H. Gallup, whom a majority of the State Civil Service Commission found had been removed from a position in the office of State Comptroller Gaus on account of his political opinions and affiliations, was sustained by the jury to whom it was submitted at special term, but upon appeal taken by the Comptroller was reversed by the Appellate Division and a new trial ordered. It is expected that the case will come up for retrial early next year.

Litigation is in progress which collaterally involves the classification of the position of street superintendent of the village of Saratoga Springs. The position was classified as competitive by the State Civil Service Commission, and as the result of the examination held by its direction an eligible list was established on which the name of Ransom Qua, a veteran of the Civil War, appeared. The sewer, water and street commissioner declined to recognize Mr. Qua's right to appointment under the veteran preference requirement of the Constitution and the law, whereupon on application of his counsel a writ of mandamus was issued to compel the commissioner to make the appointment. This case has just been argued before the Appellate Division, Third Depart

ment.

Classification Extended to Villages.

Convinced that the Civil Service rules could be applied with wholesome effect to the larger villages of the State, a number of which exceed in population some of the third class cities which by express provision of statute are subject to the operation of the law and rules, the Commission made an extended inquiry as to conditions of the public service in all villages having a population of 7,000 or more. As a result, and following public hearings and consultation with the village officials as to the details of the proposed classification, the Commission on March 23d adopted a resolution formally extending the rules to the offices, places and employments in the civil service of the villages of Batavia, Canandaigua, Ossining, Peekskill, Port Chester, Saratoga Springs and White Plains.

This resolution was approved by the Governor and went into effect March 31, 1910, bringing into the classified service of the State fifty positions in the exempt class, ten in the non-competitive class and 265 in the competitive class.

This application of the Civil Service rules to the village service was accomplished with the approval and co-operation of the members of of the boards of trustees and other officials in the villages affected. It has been accepted in good spirit by all concerned, and administered as it must be by the State Commission may be expected to show results that will compare favorably with those attained under the local commission system in the smaller cities.

The announcement of this movement to secure greater efficiency in the village service and relieve it from danger of manipulation by political and corporation interests, elicited favorable comment throughout the State. In one instance, that of the village of Seneca Falls, it brought a request for further and similar action by the Commission. Upon the petition of a number of the members of the board of trustees of that village and other representative citizens, the Commission took under consideration the proposition to bring its service within the operation of the rules. After preliminary inquiry by the Commission, followed by a public hearing, it was deemed to be unwise to make an exceptional inclusion of a single village which in population and organization did not fall within the class to which the rules had been extended. The Commission has also considered a request that the classifi

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