New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-03-10

HE is SATISFIED WITH THE OPINION VI
THE CORPORATION COUNSEL"

IAW--ACTrON OF THE MAYOR kH-
yIEwAB1E BY TIE COURTS
Josenh A. Burr. Corporation Counsel ycSter-
dsy gent to Commissioner Wills. OF .ie ~
Works Department. a., interesting ana
oplnjon Of certain Civil Service resudt'o"'
considered especially in the hght OF ~"
Section O. Of the State Constituuoh' II.
On January l. 1895, which makes the ioHo"i"s
declaration: 49, r,.u Cor
W pc mn State and Of ali tie civil divisions there
o.. including cities and villages sna ascer,ajned as
S.r as ,racficable hy examinations which so las
as practicable shall be competlo' e, fo-cen,ent OF
shall be made to provide for the ehio'
this section rort
Eleven new places in the City WORKS Dep"''
ment were created by Mr.. Wills ana "'''e".
70 the non-competitive class. with 'he apP'oY
OF the Mayor on February ~ anu "p'
ments made thereto Immediately
serted with warmth that the acuoh "a 'N 80,
and the Commissioner violated 'he
t,onal provision just quoted Inc 'N" 90
pa,or,, Association declared its intention Vi
bringing suit to determine whether vi "o'
new assignments to Schedule were 'o'
tional. The Mayor and the Commssio"''
that the Legislature had not mace any '"'
the enforcement OF the section OF 'he 'o"'''.
ton In question, and that the eNis'iiis :.
were not repealed or seriously mooihVu
Mr. Burrs opinion was asked Tor, ie".e
subn,ission the Civil Service REFORM As''
ton decided not to bring the SUIT
IN re.nonse to the request for his opinion as
=. ,,,a,hsr the assignment of the eleven ne"
n,aces 10 Schedule A in the Civil Service isl
and the appointments thereto without 'o.'p'
Two examinations violated the CONSTITUTION Vi
,ha st,tutes or Civil Service rules or resuia-
,;o,s Mr. Rurr reviewed the condition OF 'he
s,o,,,s law on the date which the constr
,,,,on.I nrovis.on became effective IN o'ue
20 answer the first question satisfactorily
Mr. Burr then found that the position was
THIS:
wiz, . view AZ regulating and improving the civil
ssrvice as nearly as the conditions oil gooo all nv
would warrant POSITIONS 9nspt Where Competition
may be found practicaoie IVY. Sxbue merit and
Htncss were TO be the supreme test OF the ram s
appoint and while ordinarily TINS mer x am
yet Thai n was impraccabe to determine ,his -
every instance bv such methoos, anu arranted nor
permitted such method OF DETERMINATION III az
A. Rurr then said that certain power Oh the
LEGISLATURE hal been delegated 10 'he wa
wbo was 70 determine within the limits oil
wise discretion whether there were any o'he'
uositions under the city government WHICH, III
addition to those specified in the statute IL was
not practicable. in order to secure 'he pes. au
ministration Of municipal government 10 Ill o'
connective examination and TO classify them
accordingly
Tho CORPORATION Counsel then considered the
section of the Constitution specified anu saiu
that the provision contained in substance the
.rs ou,liecations as the previously existing
statute. That competitive examinations must De
practicable. and that 1t recognizes the same
principle namely that in every instance merit
ard fitness cannot be determined by examination
either competitive or non-compettve'
A POINT OF INTEREST.
Mr. Burr added-ard it is an important point:
There are some positions which It is so manfesty
for the pest interests he public service not 70
81, sf,er comnetitivs examination that determi-
nation to put them on the non-competitve list
whether by the Legislature or by an eNecu.v s
ocer charged with he 0 OF 'a such DO
sitons 1t seems to me are those n wn 1nn n "a,
subordnats acts as the alter r sg9 OF 'h BART of the
duties which devolve upon him, because me inut ~,
prncipai should perform them ali; such as 1t seems
10 me arc certain positions If continental natnre
ment is peculiarly responsible for the negligence or
dishonest acts of his subordnates on Inc o og
totally different character. involving work OF az
fersnt nature such as that g should
be exempted from competitive examination lhese
Between the two extremes herein referred to lies
the boundary line difficult TO Geane In each pa.
s he is Of ha
il the conditions of good require mat
}s,' and better results can be thus secured in the
character Of the public servants obtained ana lhe
a list would be sustained If, on the other hand It
is clear that such s no; ne cas- b ,ne If bs
principle above referred to- which should be con-
trolling. is lost sight Of the action OF the deternin-
will undoubtedly be set aside.
THE CREAM OF THE ARGUMENT.
In conclusion. Mr. Burr reviewed the facts of
the changes and said that he was informed that.
with view of better administering the Depart
ment Mr.. Willis abolished certain positions then
existing and created eleven new positions. the
appointees to which were to discharge portion
Of the duties formerly devolving upon those whose
positions had been abolished, and suppleIne ed
the labors Of other appointees in his Depart
ment performing similar duties 10 the new APP
pointees MIR. Bur- found that the Mayor. In as
signing these positions at Mr.. Williss request
10 Schedule A. acted within the letter Of the law
and followed a president (which TO some ex-
tent has been heretofore established In this city
Mr. Burr then says III the character Of the new
work 20 be performed by the new employees Is
similar 10 that performed by other employees OF
been filled after competitive examination: II so
much of the work devolves upon the new APP
pontees by reason OF the aDontion OF the FORMER
r,ositions Is OF the same character as that which
has been successfully performed by persons &C.
cupying those positions after competitive ex-
animation should be of the opinion that this
determination could not be sustained. because
no reason exists for the distinction. II. on the
. other hand the positions or either OF them. are
Of character which call for the performance Of
new duties not clerical. even though there NIGH
be an honest difference or opinion as 10 wnethei
he,tar nublic servants could he obtained ant
more efficient service secured By exemption from
connective examination than otherwise tn
Judgment Of the Mayor, oased upon the iac's o
the case. would not be disturbed
In this paragraph lies an issue clearly oenned
Although Mr. Burr finds that the action OF IN
Mayor Is renewable by the courts, IL - no' nHel.
70 he disturbed because OF practicability. wher