duct, after a hearing, gave a right of review by certiorari, a right of action for damages in specified cases, and also a remedy by mandamus.

The act of 1897, chap. 428, provided for two examinations; namely, one by a civil service commission, to determine the merit of the applicant, and his fitness was to be determined by the appointing officer or board, or under his or its direction. The maximum rating on each examination was fixed at 50 per cent, and the two ratings were to be combined for the purpose of determining the applicant's standing on the eligible list.

' In 1898, chap. 186, the original civil service act of 1883 was amended in relation to examinations, appointments, promotions, and removals in cities. The act also provided that in case of a removal or reduction a written statement of the reasons therefor should be filed with the head of the department or other appointing officer, and the person so removed or reduced should be given an opportunity to make an explanation.

In 1899 the legislature passed a new civil service law (chap. 370), containing a general revision of the subject, and repealing the original act of 1883 and subsequent statutes.

Confidential position.-The position of deputy superintendent of public buildings is confidential. Re Ostrander (1895) 12 Misc. 476, 34 N. Y. Supp. 295, affirmed in (1895) 146 N. Y. 404, 42 N. E. 543. It was held in People ex rel. Jones v. Baker (1895) 12 Misc. 389, 34 N. Y. Supp. 49, that a superintendent of streets, appointed by the street commissioner of Albany, under the act of 1883, chap. 298, was practically a deputy, and held a confidential relation towards the commissioner, and that if such superintendent had served in the volunteer fire department, as required by chap. 577 of the laws of 1892, he could not be removed except for cause and after a hearing.

The position of assistant warrant clerk in the office of the comptroller of the city of Brooklyn was held to be confidential by reason of the fact that a greater portion of the duties devolving upon his position involve skill and integrity, which duties, if carelessly or negligently performed, might result in great loss to the comptroller or the city. People ex rel. Crummey v. Palmer (1897) 152 N. Y. 217, 46 N. E. 328.

"Where the duties of the position were not merely clerical, and were such as especially devolved upon the head of the office, which, by reason of his numerous duties, he is compelled to delegate to others, the performance of which required skill, judgment, trust,

and confidence, and involved the responsibility of the officer of the municipality which he represents, the position should be treated as confidential." Chittenden v. Wurster (1897) 152 N. Y. 345, 360, 37 L. R. A. 809, 46 N. E. 857.

The office of clerk of the police court of Syracuse is not confidential. He is appointed by the police justice, but his duties are defined by statutes. He is required to give a bond to the city, and is treated as an independent officer. People ex rel. Sears v. Tobey (1897) 153 N. Y. 381, 47 N. E. 800.

A special agent appointed under the liquor tax law sustains, by 10, a confidential relation to the state commissioner of excise. "His acts are official acts, performed for and in the name of the commissioner, and are not only secret, but they also involve trust and confidence which are personal to the appointing officer. The duties cast upon the special agent involve skill, integrity, and liability personal to the officer he represents." People ex rel. Sweet v. Lyman (1898) 157 N. Y. 368, 52 N. E. 132.

The assistant sergeant at arms of the New York board of aldermen holds a confidential position. Shaughnessy v. Fornes (1902) 73 App. Div. 462, 77 N. Y. Supp. 223.

Local subdivisions.-The original civil service statutes were applicable to the state and also to cities. The constitutional provision was, by its terms, made applicable to all the civil divisions of the state, including villages, and it necessarily includes counties and towns. "The Constitution has made no provision with reference to the appointing of examiners, or for the manner in which the examinations shall be made, or how the qualifications of the applicants shall be determined. This it has left to the legislature." Chittenden v. Wurster (1897) 152 N. Y. 345, 37 L. R. A. 809, 46 N. E. 857.

Practicability of examination.-In Re Keymer (1896) 148 N. Y. 219, 35 L. R. A. 447, 42 N. E. 667, holding unconstitutional the act of 1895, chap. 344, above cited, the court say that the constitutional provision clearly presents three points; namely, 1. "Merit and fitness are to be ascertained, so far as practicable, by examinations; 2. Examinations, so far as practicable, shall be competitive; and 3. The honorably discharged soldiers and sailors of the Civil War are only entitled to preference in appointment and promotion after their names appear on the list from which appointments and promotions may be made." The act of 1895 refers "only to veterans of the Civil War, and creates a favored class." It establishes an arbitrary classification, and excuses or requires examinations ac

cording to the rate of compensation. The provision that "as to veterans, competitive examinations shall not be deemed practicable or necessary in cases where the compensation does not exceed $4 per day," is also obnoxious to the Constitution. "A mere arbitrary declaration in an act of the legislature that competitive examinations of veterans are impracticable in cases where the compensation does not exceed $4 per day is in plain violation of the provisions of the Constitution making competitive examinations necessary." The rate of compensation is no test "of the practicability of subjecting the applicant for the position to a competitive examination." Without defining or limiting the power of the legislature to determine when examinations are practicable, the court say: "It is quite possible there are or will be offices and positions, by reason of peculiar duties, which experience will demonstrate cannot be filled by competition, and when such a case arises it will be competent for the legislature to provide for it by an appropriate act disclosing the circumstances which justify its intervention."

"In order to determine whether the examination of a candidate for an office is practicable, we must first ascertain the nature and character of the duties of his position. Having ascertained the facts, the question of exemption then doubtless becomes one of law.” Referring to the question whether an examination ought to be required for a confidential position, the court say that there is no evidence to show "that a competitive examination is practicable for a position where the appointee is to receive, open, read, and answer the letters of his chief, where he is to counsel and advise him with reference to the conduct and management of his office, sign his name to checks or warrants, collect and pay out his money, and have the combination of his safe and the custody and control of its contents. A candidate may be ever so competent, and still lack many of the necessary elements of a trustworthy officer; he may be ever so learned, and still lacking in judgment and discretion; he may be discreet, and still without character; he may be honest, and yet be meddlesome, and a person in whom you could not confide." The court declined to limit confidential positions to those which are strictly secret. Chittenden v. Wurster (1897) 152 N. Y. 345, 37 L. R. A. 809, 46 N. E. 87.

The language of the Constitution clearly implies that it is not entirely practicable fully to determine merit and fitness by examination. The Constitution declares a principle, but its application is left to the direction of the legislature. The framers of this provision "did not intend to determine absolutely how the merit and

fitness of appointees were to be ascertained and determined. The words 'so far as practicable' plainly relate to the degree or extent to which the examination should control. . . . The qualifications of the candidate shall be ascertained in each case by an examination to the extent and only so far as it is practicable, and consequently sufficient to insure the selection of proper and competent employees. The Constitution plainly implies that other methods and tests are to be employed when necessary and calculated to fully ascertain the merit and fitness of the applicant." A probationary term may be one of the means employed to determine the applicant's qualifications. People ex rel. Sweet v. Lyman (1898) 157 N. Y. 368, 52 N. E. 132.

The provision in the amended charter of New York, 1901, chap. 466, § 290, in effect continuing in office detective sergeants previously appointed without competitive examination, did not violate the civil service section of the Constitution, and the status of a person so appointed was not affected by a subsequent rule requiring competitive examinations. Sugden v. Partridge (1903) 174 N. Y. 87, 66 N. E. 655.

Veterans. No officer or appointing power has authority to deny to veterans a preference in appointments given by the statute. The right to such preference may be enforced by mandamus. Re Wortman (1888) 22 Abb. N. C. 137, 2 N. Y. Supp. 324; Re Sullivan (1890) 55 Hun, 285, 8 N. Y. Supp. 401.

In Re Sweeley (1895) 12 Misc. 174, 33 N. Y. Supp. 369 (affirmed in [1895] 146 N. Y. 401, 42 N. E. 543), Justice Herrick, construing the constitutional provision in connection with the act of 1894, chap. 717, which exempted veterans from the operation of the civil service laws where the compensation did not exceed $4 per day, said: "It was the evident intention by this amendment to engraft into the organic law of the state the principle of ascertaining the merit and fitness of applicants for appointment in the civil service of the state by examination, and also to provide for the extension of such principle beyond what was provided for in then existing laws or permitted by the old Constitution," and it was not intended to relieve veterans "from demonstrating their fitness for official positions by submitting to an examination, but simply to give them a preference over those not soldiers who had also had their fitness tested by examination." If a position is transferred from one schedule to another, appointments must thereafter be made from the new schedule. A veteran whose name had been placed on the eligible list under the new schedule was held entitled to preference and appointment with

out regard to his standing on the list, and his right was not affected by the fact that there was still an eligible list under the former schedule. People ex rel. Carroll v. New York City Civil Service (1896) 5 App. Div. 164, 39 N. Y. Supp. 75.

In People ex rel. Drake v. Syracuse (1899) 26 Misc. 522, 57 N. Y. Supp. 617, Justice Hiscock says the practical interpretation and purpose of the exception relating to veterans "is that the soldier whose name is upon the list shall have preference in appointment before a civilian, even though the latter has the higher standing. But it is necessary for the veteran in the first instance to secure under the law a place upon the list for his name. And when, two or three veterans having obtained places for their names upon the list, it is to be decided which one shall obtain the preference secured by the Constitution, I see no reason why the principle of competition as amongst themselves should not apply, and why that one of the veterans having the highest rating should not secure the preference and the appointment rather than that three names should be transmitted to the appointing body, giving it the power of selection, and destroying, to that extent, the principle of competition." It applies to veterans themselves the principle of competition which is the fundamental idea of the Constitution. The name of the person first on the list should be certified, rather than the three highest names. In People ex rel. Balcom v. Mosher (1900) 163 N. Y. 32, 79 Am. St. Rep. 552, 57 N. E. 88, cited above, it was held that the appointing power was not bound to appoint the veteran graded highest.

Section 21 of the civil service act of 1899, chap. 370, prohibits the removal of a veteran "except for incompetency or misconduct shown, after a hearing, upon due notice, upon stated charges." A veteran, who, with others, was removed because of an insufficiency of funds, and also because he was the least efficient man in the office, but without charges, was held entitled to reinstatement, although the fact that he was a veteran was not known by the appointing officer at the time of his discharge. The legislature had power to extend to veterans a preference beyond their appointment and promotion, and protect them from removal except under specified conditions. Stutzbach v. Coler (1901) 168 N. Y. 416, 61 N. E. 697.

A veteran who intends to avail himself of the preference given by the Constitution and civil service statutes must give time and notice thereof to the appointing authority. A notice after his dismissal is too late. "The granting of a special privilege by the state to a particular class of citizens carries with it, by fair implication,