#### 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.)

Civil Service Act — Merit and fitness distinguished.

Merit and fitness, as used in the Constitution of 1894 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.

*254Motion .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 Gr. Tracy, for motion..

James E. Newell, opposed.

Wright, J.

To fender a candidate eligible for appointment for the office in question, the • Constitution and Civil Service Laws fe- ■ quire 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 42.8 of the Laws of 1897, commonly called the 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 examina^ tion 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. . " - . '

*255“ 3. That which is deserved, earned or merited; á 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 quálity 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 performance of the duties of the office, because lacking in one or more of the qualities mentioned above under the term fitness.

Therefore, the terms are not synonymous and convertible.

It would appear, however, that these terms are carelessly used in the Civil Service Laws although not as synonymous; but it appears from the affidavits of the. commissioners that "they differentiated them according to their ordinary' signification and limited their examination to merit, and did not extend it to the consideration of fitness.

In the views taken above it is unnecessary to consider the question respecting the constitutionality of the Black Law.

This motion is, therefore, denied on the ground that the civil ■service board has no legal eligible list of persons eligible for appointment to the office in question. And the relator has never be,en examined, and rated for merit and fitness for said position as provided for by the Constitution of the state of New York and the Civil Service Laws.

Motion denied.