is to construe the constitution as written and to determine the validity of legislation seeking to enforce it. The status of the war veterans in the civil service was fixed by the constitutional convention of 1894 and if it is not satisfactory to the people the remedy is with them."

In the annual appropriation bill for each year since and includ ing 1885, after making the appropriation for the department of public buildings, the legislature embodies in the act the following provision: "Provided that the orderlies and watchmen and persons employed in positions, which on March first, eighteen hundred and eighty-six were designated on the books of the superintendent of public buildings, as those of orderlies and watchmen, who shall receive any portion of the said sum of two hundred and fifteen thousand dollars for their services, shall be persons who are citizens of the state of New York, and who have served in the Union army or navy during the late war, and have been honorably discharged therefrom, and such honorably discharged persons shall not be subject to civil service rules of examination."

Under the authority of matter of Keymer, supra, all such legislation enacted since January 1, 1895, is unconstitutional and void.

Prior to January 1, 1895, however, such enactments were not violative of any existing provision of the constitution and were undoubtedly valid.

As it is stated in the communications accompanying your letter that David Fitzgerald was appointed an orderly on the 1st day of November 1886, and has ever since acted as such, there seems to be no doubt as to the legality of his appointment or his right to retain his position.

As to the other twelve employees named, it seems to be entirely clear that they are being retained in their positions contrary to law.

This conclusion is unavoidable, and I can only adopt the language of the court of appeals: "I have but one duty to perform and that is to construe the constitution as written and to determine the validity of legislation seeking to enforce it."

Yours respectfully

JOHN C. DAVIES
Attorney-General

DECISIONS AND OPINIONS OF THE SUPREME COURT AND THE

COURT OF APPEALS-1899

I CASES RELATING TO APPOINTMENTS

THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. HALL, Respondent, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF SARATOGA SPRINGS, Appellant, Impleaded with JAMES W. FITZPATRICK.

(Supreme Court, Appellate Division, Third Department, November, 1898. 35 App. Div. Rep. 141)

VETERAN.-He is not entitled to preference in the appointment of members of the board of health of a village under chapter 661, iaws of 1893.

Chapter 464 of the laws of 1887, amending chapter 312 of the laws of 1884, gives preference in appointment in a public department, such as the board of health of a village, to honorably discharged Union soldiers, but does not give such preference in the appointment of the members of that board by the board of trustees of the village under the public health law (chapter 661 of the laws of 1893).

Appeal by the defendant, the board of trustees of the village of Saratoga Springs, from an order of the supreme court, made at the Montgomery special term and entered in the office of the clerk of the county of Saratoga on the 5th day of July, 1898, granting the relator's motion for an alternative writ of mandamus directed to the board of trustees of the village of Saratoga Springs and James W. Fitzpatrick, requiring the said board of trustees of the village of Saratoga Springs, New York, to forthwith assemble, and the said Fitzpatrick to appear before said board, and requir ing said board then and there to annul and declare void the appointment of the said James W. Fitzpatrick to the office of member of the board of health of the village of Saratoga Springs and to appoint the relator to said position.

On the 4th day of April, 1898, it was the duty of the respondent, the board of trustees of the village of Saratoga Springs, to appoint a member of the board of health of said village. The relator applied to the respondent for such appointment, and, in connection with his application, submitted his affidavit stating in detail his qualifications and the fact that he was an honorably

discharged Union soldier of the late civil war. The board of trustees did not appoint the relator, but did appoint the respond ent, James W. Fitzpatrick. This appeal is from an order awarding an alternative writ of mandamus. The affidavits on the part of the respondent allege that it is advised that chapter 821 of the laws of 1896 (amending chapter 312 of the laws of 1884) does not apply to an appointment of a member of the board of health; that Wendell W. Wheeler, an honorably discharged Union soldier, also applied for the appointment; that the relator had previously held the said office, and had not properly performed its duties, and was incompetent, and that the board of trustees had ap pointed Fitzpatrick because it deemed him better qualified to perform its duties.

James F. Swanick, for the appellant.

Nash Rockwood, for the respondent. Landon, J.:

Chapter 464, laws of 1887 (amending chapter 312 of the laws of 1884), provides that "in every public department", including those of villages, "honorably discharged Union soldiers

shall be preferred for appointment". Section 1, chapter 821, laws of 1896, contains the same words.

The public health law (chapter 25 of the general laws [laws of 1893, chapter 661]) provides for the creation of local boards of health, and prescribes their powers and duties. In villages the members of the board of health, not less than three nor more than seven, must be appointed by the board of trustees of the village. (§§ 20, 21, article 2, of the act.) Such boards of health are independent departments, clothed with large powers. It is obvious that the department will not in fact exist until it is constituted by the appointment of the requisite members of the board of health. Being thus constituted, then appointments can be made in the department, and not until then. The statute gives preference in appointments in the department to honorably discharged Union soldiers, not a preference in the appointment of the heads of the department. (People ex rel. Fonda v. Morton, 148 N. Y., 162; People ex rel. Balch v. Mayor of Yonkers, 39 N. Y. St. Repr., 11; People ex rel. Wren v. Goetting, 29 id., 286.)

The direction of a department of the government is one thing, the execution of the directions given by it is another, and the statute cited relates to the latter function.

The order should be reversed, with ten dollars costs, and motion denied, with ten dollars costs.

All concurred, except Putnam, J., not acting.

Order reversed, with ten dollars costs and disbursements, and application for mandamus denied, with ten dollars costs.

THE PEOPLE ex rel. PETER TOBIN, Relator, v. JACOB C. Knauber et al., Constituting the Civil Service Board of the City of Syracuse, Defendants.

(Supreme Court, Oswego Special Term, April, 1899. 27 Misc. Rep. 253)

CIVIL SERVICE ACT-MERIT AND FITNESS DISTINGUISHED.-Merit and fitness, as used in the constitution of 1834 and in chapter 428 of the laws of 1897, are not convertible terms, and where it appears by the affidavits of a city civil service board that they differentiated the terms according to their ordinary significance and limited the examination of a candidate to merit alone, the board has no power to determine his standard of fitness by merely doubling his rating for merit.

Motion by the plaintiff for a peremptory mandamus commanding the defendants, constituting the civil service board of the city of Syracuse, to forthwith make and deliver to the common council of said city their certificate that the relator, Peter Tobin, has passed an examination for merit and fitness for the position of assistant custodian of the city hall, pursuant to the provisions of the civil service act; that he is an honorably discharged veteran of the late civil war; that his rating for said position is the highest of any veteran on the eligible list, and that he is entitled to be appointed to said office.

William G. Tracy, for motion.

James E. Newell, opposed.

Wright, J.: To render a candidate eligible for appointment for the office in question, the constitution and civil service laws require him to pass an examination for merit and fitness for that office.

The civil service board examined the relator for merit only, and gave him a rate of 47.95 on the scale of 50. His rate was the highest of the candidates. The board afterwards, without examining the relator for fitness for the office, doubled his rating for merit, and gave him that mathematical result of 95.90, as his rating for merit and fitness.

This arbitrary procedure is unwarranted (People ex rel. Drake v. Common Council of Syracuse, 26 Misc. Rep., 522).

But the plaintiff urges that the terms merit and fitness, as used in the constitution and civil service laws, are synonymous and interchangeable, and that chapter 428 of the laws of 1897, commonly called Black law, providing for an examination by the civil service board for merit, and for an examination by the appointing official for fitness is unconstitutional; and that, therefore, since the relator has received the highest rating on the examination for merit he is entitled to the appointment.

Are these terms synonymous and interchangeable? Merit is defined by the American Encyclopaedic Dictionary, so far as applicable, as follows:

"1 The quality of deserving, whether well or ill; desert of good or evil.

"2 Excellence, deserving honor or reward; desert, worth, worthiness.

"3 That which is deserved, earned or merited; a reward, return or recompense earned or merited; deserts."

Fitness is defined by the American Encyclopaedic Dictionary, so far as applicable, as follows:

"1 The quality or state of being fit, suitable, or adaptedness. "2 Serviceableness, use, utility." See also Webster's Dictionary and the Century Dictionary.

Merit, therefore, as it relates to the question under discussion means the quality of deserving the office because of excellence and worth.

This obviously comprises competency-intelligence, education, with special reference to an understanding and knowledge of the duties of the office.

Fitness means the quality of being suitable and adapted to the performance of those duties. This, in some cases, obviously includes habits, industry, energy, ambition, tact, disposition, knowledge of human nature, discretion, shrewdness, suitable physical presence, etc., matters which require an examination of a very different character from that which may test the competency, excellence and worth of a candidate.

A man may be of great mental competency, moral excellence and worth, and yet possess very little adaptation for the perform