an effective law was put on the statute books. In 1883, following the death of President Garfield at the hands of a disappointed office seeker, Congress passed a civil service act, and created a civil service commission to administer it, and a few months later a similar law was passed in the state of New York. As in the national government, a few weak attempts to counteract the patronage evil were made in New York before this time. Section 1543 of the present city charter, for example, is based on the provision in the charter of 1873 to the effect that no head of a bureau or regular clerk should be removed without being given an opportunity to make an explanation. Provisions were made occasionally forbidding removal except for cause. Attempts of

this sort, however, were not adequate because they restricted the right to remove, without doing anything to improve the quality of the subordinate. In fact these are the very opposite of the Canadian measures which provide that the commission appoint, and the executive may remove, on the theory that an independent commission such as this would have no motive to appoint except for fitness, and if the executive cannot appoint he will have no motive to remove except for unfitness. To give full latitude to appoint, and to restrict removals is a provision that respects nothing but the protection of incompetence.

The civil service acts of 1883 proceeded on the theory that the commission should determine fitness, and certify from a list, and the executive would be limited to those certified. Both the national and state acts provided for a commission distinct from the appointing officer with power to hold examinations and make rules governing the determination of relative fitness of candidates for the public service. By this means public officers were not permitted, except in specified cases, to appoint or employ a person unless the commission had first ascertained his merit and fitness. The acts were based on the theory that there would be less temptation to make improper removals where the officer had no power to fill the vacancy as he saw fit1. This seems to be the theory of the provision in the state constitution, which applies solely to appointments and promotions, and does not affect removals in any way. It directs that appointments and promotions in the civil service so far as practicable, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examination which shall be competitive. An exception

1 Peo. ex rel. Brennan v. Scannell, 62 A. D. 249, 256 (1901)

is made that Civil War veterans who are residents and citizens of the state shall be entitled to preference1.

The existing provisions for the protection of the civil service of New York City are found in the charter and in the civil service law. The latter law, which has been greatly amplified and improved, contains many provisions defining and classifying the branches of the civil service, prescribing the rights and duties of the commisions and the duties of other officers, and making prohibitions against political assessments. The two chief classes of provisions, however, are:

1-Those for determining the qualifications necessary for admission to the civil service, and

2-Those restricting the right to remove from it.

Provisions of the second class, or most of them, are older than the civil service acts proper, are based on a somewhat different theory, and can be discussed separately from those of the first class. While by no means the most important they claim a large share of popular attention and discussion.

The chief complaint against the civil service law of this country is that it makes it difficult, often times impossible, for the department head to get rid of his inefficient subordinates and so interferes with efficiency and economy in management. Similarly it has been urged that it is quite as unfair to those who render meritorious personal service, since it protects the incompetent and puts a premium on the employee with "influence".

Obviously this can be true only of the provisions which restrict removals. But it was the negative side of civil service which was developed first, since the thing that seemed most important at the time was to prevent executive power being used to make wholesale removals. These provisions are the ones which are discussed in the following chapters. An attempt is here made to ascertain the nature and extent of the power of removal, the number and kind of restrictions placed upon it, and the manner in which it must be exercised.

THE SOURCE OF THE CIVIL SERVICE LAW

The rights of civil servants depend for existence on some law or constitutional provision. They are, therefore, capable of being altered or withdrawn. In order to determine the validity of any existing law or any purported change, we must know what body has authority to regulate such matters, what limitations, if 1 Const. Art. V., sec. 9

any are placed upon it, and the source from which such power is derived.

The ultimate source of these as well as all other rights is the will of the people. All political power in this state is inherent in them; all law must be enacted by their duly authorized agents. They have retained to themselves only the right to enact a constitution and measures to be submitted to the electorate. Other laws are enacted by their representatives in assembly, i.e., certain persons are chosen to represent the whole people and in their name to make laws for their common good. The lawmaking body is called the legislature, and its legislative powers in respect to local government are absolute and unlimited, except as restricted by the constitution.

The only restrictions on the power of the legislature to organize cities and regulate the details of their government, aside from the manner of enacting certain laws affecting cities, are those limiting the indebtedness of cities, and those requiring that appointments and promotions shall be made for merit and fitness2, and that all city officers shall be elected or appointed by some local authority3. Except for these limitations the legislature has full power to prescribe the details of city management. It may restrict the powers of cities, or enlarge or altogether withdraw them. It may prescribe the framework of the city government, the kind and number of officers and employees, their salary, duties, power and tenure, and direct whether they are to be elected or appointed5.

For the territory embraced within the city, the legislature prescribed a form of government by means of a charter and various general and special acts. These laws create a framework of city government, and fix the rights, powers and duties of its departments, officers, and employees. The legislature does not attempt to provide directly for every detail of municipal administration, but turns over the regulation of certain matters to the local authorities.

This course has been adopted in determining the number and kind of officers and employees in the service of the city of New

1 Const. Art. VIII., sec. 10

2 Const. Art. V., sec 9

3 Const. Art. X., sec. 2

See Ryan v. City of New York, 177 N. Y. 271, 276 (1904)

Peo. ex rel. Gere v. Whitlock, 92 N. Y. 191 (1883) Peo. ex rel Devery v. Coler, 71 A. D. 584 (1902) Ryan v. City of New York, Wilcox v. McClellan, 185 N. Y. 9 (1906) Peo. ex rel. W. E. & C. Co. v. Metz, 193 N. Y. 148 (1908)

York. The legislature has created certain positions and indicated how they are to be filled, but has given to the officers who fill these positions the power to appoint or employ the subordinates necessary to assist in the actual administration. The city serv-. ice, therefore, is made up of persons whose positions have been directly created by the legislature and of those who have been employed to assist these officers in the detailed and routine work of their respective departments.

OFFICERS AND EMPLOYEES

Members of the public service are commonly divided into two classes officers and employees. The latter, in turn, may be divided into employees proper, i.e., those on salary, and laborers, i.e., those engaged in manual labor and paid on a per diem basis. It is impossible to define the word "officer" in terms that will hold good for every case, for the reason that the word is used with different meanings in different statutes1. It is sometimes held, however, that there is a distinction between certain so-called superior and subordinate members of the public service. Popularly the terms "officer" and "employee" are used to indicate this relation of superior and subordinate, to distinguish between the one who appoints and the one appointed, the one who gives and the one who obeys orders, the one who is responsible for the conduct of public affairs and those who carry out the details and perform the routine work under his direction. Probably it is this distinction which is sought to be expressed by the terms "officer" and "employee" but the courts cannot adhere rigidly to such a definition.

An office, it is said, must be created by the constitution or by the legislature, but a position is not necessarily an office because created by the legislature. For example, the legislature may direct that a board or officer "shall appoint a secretary" without making that secretary an officer3.

This test has been applied: If the incumbent has his duties. prescribed by law and is not subject to the direction of a superior as to the time and manner of exercising them, he is an officer, but if his duties are defined not by law but by a superior and if he is subject to direction as to the time and manner of exercising

1 See Rowland v. Mayor, 83 N. Y. 372 (1881) Donahue v. Keesham, 91 A. D. 602 (1904) Peo. ex rel. Collins v. McAneny, N. Y. L. J. Feb. 29, 1912 2 Meyers v. Mayor, 69 Hun. 291, 293 (1893) Peo. ex rel. O'Toole v. Hamilton, 98 A. D. 59, 62 (1904)

3 Peo. ex rel. Hoefle v. Cahill, 188 N. Y. 489 (1997)

them he is an employee'. In other words, an officer is his own master and acts on his own initiative, while an employee is a subordinate who is not independent but who requires a direction from his superior to set him in motion. The officer acts as principal; the employee as agent.

On the basis of this classification one would say that mayors, comptrollers, and heads of departments are officers and that clerks, firemen, inspectors, and patrolmen are employees. As a matter of fact, however, we find that the courts in interpreting a particular statute sometimes hold that a public servant who would logically belong in one of these two classes is actually excluded from it. For example, it would be supposed that a clerk to a mayor, a secretary and treasurer to a park commission, a member of the fire department, a school teacher, and a police patrolman should always be regarded as "employees"; but in construing chapter 388 of the laws of 1890 requiring every municipal corporation (among others) to pay "each and every employee" weekly, the court held that the above named public servants were not "employees" within the meaning of the act.2 The head note to this decision says that the term employee as used in the statute in question is "limited in its scope to laborers and workmen engaged in manual labor." The intention of the legislature, not any logical definition of terms controlled the court. It is possible therefore, that a public servant may be an officer under one act and an employee under another act. We must conclude, therefore, that the principle stated above is sound; namely, there can be no definition of the two terms which is universally applicable.

NATURE OF PUBLIC SERVICE

It is well recognized that the rights, powers and duties of an officer are fixed and determined by law and not by contract. It is not so well recognized that the same is true of an employee. Indeed, it is sometimes said that the difference between an officer and an employee is that the rights of the latter are contractual3. This, however, is misleading. There are none of the elements of

1 Olmstead v. Mayor, 42 Super. Ct. 481 (1877) Peo. ex rel. Rae v. York, 32 A. D. 57, 61 (1898) Peo. ex rel. O'Toole v. Hamilton, 98 A. D. 59 (1904) Peo. ex rel. Hoefle v. Cahill, 188 N. Y. 489 (1907) Peo. ex rel. Jacobus v. Van Wyck, 157 N. Y. 495 (1899) Matter of Christey v. Cochrane, 211 N. Y. 333 (1914)

2 People v. City of Buffalo, 57 Hun. 577 (1890)

3 Steinson v. Board of Education, 165 N. Y. 431, 434 (1901) Finigan v. Board of Education, 153 A. D. 429 (1912)