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REPORT OF

reason of the fact that the heads of all departments are his appointees and are removable by him. In this state the rules of the State Commission affect not only the subordinates of ap. pointees of the governor, but also the judicial civil service and the subordinates of elective state officers and county and city officers. Public officers who are independent of the governor do not feel constrained to acquiesce in the classifications of this Commission as approved by the governor, and they resort freely to the courts to compel changes in classifications which do not meet their approval.

It is a noteworthy fact that while many of the refusals of this Commission to exempt from competition have been attacked in the courts, no exemption granted by it has been made the subjeot of judicial review. In the neighborhood of one hundred distinct legal proceedings have been instituted against the State Civil Service Commission within the past year.

No proceeding against the State Civil Service Commission han as yet gone to the Court of Appeals on a question of classification. The relevant cases in the Court of Appeals were all insti. tuted against parties other than the State Commission and the decisions went off on questions other than that of correct classification. They have been followed in proceedings against the Commission directly involving questions of classification, by the Appellate Division, Fourth Department, in Blust v. Collier et al., 62 App. Div. 478, and by judges at Special Term, and have been considered as controlling by the lower courts in all sucb cases, and particularly in those instituted against us during the past year. A brief review of these Court of Appeals decisions and their effect upon the litigation of the past year is therefore

proper.

Chittenden v. Wurster, 152 N. Y. 345, decided in 1897, was a taxpayer's action against the fiscal officers of the city of Brooklyn and eleven exempted employees to restrain the payment of the salaries of the latter. The only point actually decided by the court in that case was that such action would not lie under the then existing civil service law. The positions were, for the most part, mere clerkships. They had been put in the exempt class by the municipal commission. Their right to be there was not passed upon, but in the opinion of the court Judge Haight (Judges Bartlett, Martin and Vann concurring) said that competitive examinations are impracticable for confidential posi. tions. Judges Gray and O'Brien each wrote a long dissenting opinion in this case, and Judge Andrews concurred with Judge Gray.

In the case of People ex rel. Crummey v. Palmer, comptroller of Brooklyn, 152 N. Y. 217, the relator was a veteran volunteer fireman. He had been appointed assistant warrant clerk in the office of the comptroller and was discharged without a hearing. He brought mandamus to compel reinstatement. The question was whether Crummey occupied a “confidential relation” to the comptroller. If not, he was protected from arbitrary removal and his discharge was improper as the law then stood. Judge Haight said: "Such a relation arises whenever a continuous trust is reposed by one person in the skill and integrity of another,” and the court held that the relation of Crummey to the comptroller was confidential. Judges O'Brien and Vann dissented.

The case of People ex rel. Flood v. Gardiner, district attorney of New York county, 157 N. Y. 520, decided in 1899, was also a removal case. The same question as in the Crummey case arose as to a subpoena server in the office of the district attorney, and the court held that the subpoena server occupied a “strictly confidential relation” to the district attorney. Judge Haight, with whom concurred Judges Bartlett and Martin, dissented.

People ex rel. Sweet v. Lyman, state excise commissioner, 157 N. Y. 368, decided in 1898, involved a similar question in connection with the position of special excise agent. Judge Martin, in the opinion of the court, says “ that the position of special agent is confidential there is little doubt. * * * The Civil Service Commission cannot change the actual status of a posi. tion by declaring one which is actually confidential not to be so."

The present law was not in force when the above opinions were written.. Section 13 of the White act, last sentence, provides that “When the position to be filled involves fiduciary responsibility, the appointing officer, where otherwise permitted by law, may require the appointee to furnish a bond or other security and shall notify the state or municipal commission of the amount and necessary details thereof." It is, therefore, a question whether the above Court of Appeals cases are now to be regarded as applicable in any event to positions of fiduciary responsibility. No court has as yet regarded this provision as seriously affecting the classification of confidential positions, although it has been repeatedly brought to the attention of the courts in all proceedings against the present State Commission.

The lower courts have, in the proceedings against the present Commission by employees of sheriffs, registers and county clerks, compared each case with the positions affected by the Court of Appeals cases cited above, and have almost invariably held, on the authority thereof, that such county employees were in the exempt class.

It is the confident hope of the Commission that when the pending litigations reach the Court of Appeals that court will narrow its definition of the term “confidential ” and hold that not all confidential positions are in the exempt class. The Com. mission does not subscribe to the mere dictum of a bare majority of the court of last resort that competitive examinations are impracticable for all confidential positions. When we consider that the constitution of the state makes competition the rule and exemption the exception, that candidates for examination are compelled to submit certificates of character from not less than three well known reputable citizens before they can enter the examination, that three names are submitted to the appointing power from which he makes his choice, that the appointment is at first on probation only, that the civil service law places practically no restrictions upon removals, except in special cases, that the appointee must rely on his own merit and fitness and not on political influence to retain his place and that the alternative of competition is too often patronage rather than confidence, it seems difficult to maintain that no confidential posi. • tion can be satisfactorily filled by competition.

Kings county On the 1st of January, 1902, the offices of county clerk, sheriff and register of Kings county became salaried offices under chapters 704, 705 and 706 of the Laws of 1901. The civil service rules had been extended by the Commis. sion, with the approval of the governor, to the county service of New York, Kings, Erie, Queens and Richmond counties on June 16, 1900, but prior to January 1, 1902, the subordinates of the Kings county officials above mentioned were placed in the exempt class as being the employees of the head of the office, paid wholly from his fees and not from public funds. The above

statutes made the subordinates in said offices the employees of the county, paid from the public treasury, and, by the terms of the statutes, their appointment was to be made “subject to the provisions of the civil service law.”

The Commission proceeded, with the approval of the governor, to classify as exempt the attorneys, deputies and secretaries in each of said offices, but it left in the competitive class, in the office of the sheriff, the positions of equity clerk, assistant equity clerk, accountant, bookkeeper, deputy warden, assistant clerk, keeper, matron, assistant deputy sheriff and van-driver; in the office of the register, the positions of chief clerk of records, chat. tel mortgage clerk, assistant chattel mortgage clerk, chief clerk of copyists, tickler clerk, mailing clerk, messenger, entry clerk and comparer; in the office of the county clerk, the positions of messenger, index clerk, equity clerk, chief of old records, comparing clerk, docket clerk, document searcher, copyist and custodian. Said officers for the most part refused to abide by said classification and made their appointments in most instances without regard to the eligible lists established by this Commission, and, as a result, thirty de facto employees in the sheriff's office, thirty-eight in the register's office and sixteen in the county clerk's office, all holding positions classified as competi. tive, thereupon instituted, in the Supreme Court, separate pro. ceedings for peremptory writs of mandamus (eighty-four in all) against the State Civil Service Commission, to compel said Commission to certify to the legality of their appointments on the ground that their positions were exempt by law because of the impracticability of competition and that, therefore, their appointments were proper notwithstanding the classification of their positions as competitive by this Commission.

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