New-York tribune., 1896-11-17
BOTH SIDES SUMMING Of.
MIR. BURR REsIsTs THE ATTACK ON The
NoN-COMPETITIvE SCHEDULE

THE powrR To MAKE CIASSIFICATIONS VESTED
IN THE MAYOR AND GOVERNOR STILL IN
FORCE HE sAys-EDwARp NJ. sEEP-
ARDS DIG" AT CITY OFFICIALS.
The taxpayers action brought by Simeon h
Chittenden and others against the Mayor ana
other city officials to declare the oihces heio
by eleven subordinates in the city government SUD-
ject to competitive examination was brought 10 d
close before Justice Keogh. in the supreme court
yesterday afternoon. and counsel on poth siues
summed up although counsel for the plaintiffs
did not finish talking. and VIII be hearn Iur'ne'
this morning. The action is far-reach'ne IN i's IN
huence for If the plaintiffs are successful almost
every subordinate Office under the city government
will have TO be filled from the successful cahu'uaeS
In a competitive examination The trial mas oc-
cupied several days. and some or the bcst-Kho"h
experts in the country have testified The assertion
Of the plaintiffs Is that the Constitution OF 1873 pro-
vided that wherever practical Offices under the
city government should be filed by competitive ex-
animation. and that almost all the places IN the
city can be filed that way better than any other
CORPORATION Counsel Burr began summing up Tor
the defendants after the noon recess tie said 'ha'
he would base his argument four points. First
he contended that the Constitution OF 1922 had no
effect whatever on the Civil Service laws that en-
listed at that time. except to embody into organic
law what previously statutory. second
he held that the power and discretion vested by
the existing Civil Service laws In the Governor
and the Mayor TO make classifcations under the
Civil Service regulations were still in force ana the
question Of such classification was legislative and
administrative and not judicial and therefore
could not be reviewed by any court. unless aDuse
was shown. Third. he declared that there was
no reason TO believe and determine that the dis
cretion OF the Mayor in the places in suit had been
abused. but rather that it had been wisely eXer-
csed Fourth. that If the action OF the Mayor was
Mo hv he
action Of the kind brought That was moi the
proper remedy.
LESS THAN PER CENT IN CLASS !.
Enlarging on the points of his argument. Mr.. Burr
said that out Of the 5000 subordinate posts in tn"
city government there were only liO, or less than 9
per cent in Class A. or the non-compeitlve class
Referring to his first point. MIR Burr said that the
laws and the Constitution were In full accord Ihc
discretion in classification was still vested In the
Mayor as II had been in 1Ss3 when the first civil
Service laws went into effect The classification
made by Mayor Low In 1sS3 with the later amend
ments and enlargements. was final until the Mayor
again exercised his discretion Regarding the
second point Mr.. Burr said that long as the
abuse of the exercise Of discretion bv the Mayor
was not so apparent in the language Of the Cour;
Of Appeals ut needs TO argument to show II ; the
Court had power 10 interfere. he sand that Il
taxpayers suit could only be maintained In tn
premises when appointments had been made con-
trary TO Civil Service provisions. This had no;
been shown in regard to of the places con
cerned Three remedies were possible for the
plaintiffs They might indict the Mayor they
might for a mandanius to reciassiy the places
or they might secure the same result by a man
datory injunction. If the Court held that the ac-
ton was a proper one. there would be no safety
for the administration for at any time payment OF
salaries might be stopped by an action. Mr.. burf
said in closing that he not a champion OF the
spoia system and that his administration. accord
Ing to common reDute. had been faithful IN the
observance of the Civil Service rules.
Jesse Johnson had word TO say on behali OF one
of the defendants. He contended that the suit was
directed at the statute. II the action was success
ful the statute would be wiped out, and every
place not elective could be made renewable in
taxpayers action.
MIR. SHEPARD CRITICISES OFFICIALS.
Edward NJ. Shepard. counsel for the plaintiffs
had only twenty minutes before adjournment In
which to give his side Of the case so Justice keogh
said ne might speak until adjournment ana then
continue this morning. Mr.. Shepard said that II
was we'll settled that the right Of compensat ton was
with the righful and not with the actual holder ol
an office. IL waste of public funds TO pay an
Illegally appointed officer. Therefore, as tax
paver might bring action TO prevent the waste
of public funds. the action was a proper one; MT
OF departments had been found whose enforcement
Of the Civil Service laws was perfunctory, ana the
courts the only refuge or those VINO wanted
the Jaws enforced. M. Shepard said he would nave
sioner Willis and Controller Palmer in the witness
chair and have questioned them about their
Civil Service appoint tm"nts .,.,,
An adjournment was taken at this point until thls
morning
n